ART 13 MITIGATING CIRCUMSTANCES

A. PRAETER INTENTIONEM
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
C.A. No. 384

February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder,
of which Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to
an indeterminate penalty ranging from seven years, four months and one day of prision mayorto thirteen years, nine
months and eleven days of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the
deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of
the period of preventive imprisonment suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and
in her brief filed therein on June 10, 1944, claimed
(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor
and that she should be completely absolved of all criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not
have the intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered
to the agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged offense was attended by the
aggravating circumstance of having been committed in a sacred place.
The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel,
City of San Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and
appellant, in the evening of September 20, 1942, the former had been courting the latter in vain, and that on one
occasion, about one month before that fatal night, Amado Capina snatched a handkerchief belonging to her, bearing her
nickname "Aveling," while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of
his love, which she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on
account of which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept
the matter to herself, until the following morning when she informed her mother about it. Since then, she armed herself
with a long fan knife, whenever she went out, evidently for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously
entered the room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She
immediately screamed for help, which awakened her parents and brought them to her side. Amado came out from where
he had hidden under a bed in Avelina's room and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness;
and when Avelina's mother made an attempt to beat Amado, her husband prevented her from doing so, stating that
Amado probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio lieutenant, Casimiro Lozada, and
for Amado's parents, the following morning. Amado's parents came to the house of Nicolas Jaurigue and apologized for
the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the conversation, as he might
not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the
neighborhood of having taken liberties with her person and that she had even asked him to elope with her and that if he
should not marry her, she would take poison; and that Avelina again received information of Amado's bragging at about 5
o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the
Seventh Day Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to
attend religious services, and sat on the front bench facing the altar with the other officials of the organization and the
barrio lieutenant, Casimiro Lozada. Inside the chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of
attending religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the
other side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which
Avelina was sitting and sat by her right side, and, without saying a word, Amado, with the greatest of impudence, placed
his hand on the upper part of her right thigh. On observing this highly improper and offensive conduct of Amado Capina,
Avelina Jaurigue, conscious of her personal dignity and honor, pulled out with her right hand the fan knife marked Exhibit
B, which she had in a pocket of her dress, with the intention of punishing Amado's offending hand. Amado seized
Avelina's right hand, but she quickly grabbed the knife with her left hand and stabbed Amado once at the base of the left
side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily mortal. Nicolas Jaurigue,
who was seated on one of the front benches, saw Amado bleeding and staggering towards the altar, and upon seeing his
daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering him Avelina
said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant
Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina
surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more
correctly, "I place myself at your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada
advised Nicolas Jaurigue and herein defendant and appellant to go home immediately, to close their doors and windows
and not to admit anybody into the house, unless accompanied by him. That father and daughter went home and locked
themselves up, following instructions of the barrio lieutenant, and waited for the arrival of the municipal authorities; and
when three policemen arrived in their house, at about 10 o'clock that night, and questioned them about the incident,
defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said policemen briefly of
what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated above,
and went with said policemen to the police headquarters, where her written statements were taken, and which were
presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may be, is universal. It has been
entertained and has existed in all civilized communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true
nobility. And they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor,
when brutally attacked, women are permitted to make use of all reasonable means available within their reach, under the
circumstances. Criminologists and courts of justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There
is a country where women freely go out unescorted and, like the beautiful roses in their public gardens, they always
receive the protection of all. That country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the
right to property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo
Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense,
inasmuch as a woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it
is evident that a woman who, thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal
liability, since such killing cannot be considered a crime from the moment it became the only means left for her to protect
her honor from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil.,
504). .
As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor.
Thus, where the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her
firmly from behind, without warning and without revealing his identity, and, in the struggle that followed, touched her
private parts, and that she was unable to free herself by means of her strength alone, she was considered justified in
making use of a pocket knife in repelling what she believed to be an attack upon her honor, and which ended in his death,
since she had no other means of defending herself, and consequently exempt from all criminal liability (People vs. De la
Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she
happened to be carrying at the time, even though her cry for assistance might have been heard by people nearby, when
the deceased tried to assault her in a dark and isolated place, while she was going from her house to a certain tienda, for
the purpose of making purchases (United States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing
that some person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and
killed the said person with a pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it
was not sufficient provocation or aggression to justify her completely in using deadly weapon. Although she actually
believed it to be the beginning of an attempt against her, she was not completely warranted in making such a deadly
assault, as the injured person, who turned out to be her own brother-in-law returning home with his wife, did not do any
other act which could be considered as an attempt against her honor (United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night
on September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated
by his previous acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him,
as shown by the authorities cited above..
According to the facts established by the evidence and found by the learned trial court in this case, when the deceased
sat by the side of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on
the upper portion of her right thigh, without her consent, the said chapel was lighted with electric lights, and there were
already several people, about ten of them, inside the chapel, including her own father and the barrio lieutenant and other
dignitaries of the organization; and under the circumstances, there was and there could be no possibility of her being
raped. And when she gave Amado Capina a thrust at the base of the left side of his neck, inflicting upon him a mortal
wound 4 1/2 inches deep, causing his death a few moments later, the means employed by her in the defense of her honor
was evidently excessive; and under the facts and circumstances of the case, she cannot be legally declared completely
exempt from criminal liability..
But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio
lieutenant in said chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her
house shortly thereafter and to remain there subject to the order of the said barrio lieutenant, an agent of the authorities
(United States vs. Fortaleza, 12 Phil., 472); and the further fact that she had acted in the immediate vindication of a grave
offense committed against her a few moments before, and upon such provocation as to produce passion and obfuscation,
or temporary loss of reason and self-control, should be considered as mitigating circumstances in her favor (People vs.
Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his
offending hand with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another

mitigating circumstance which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs.
Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and
appellant, with the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be
legally sustained; as there is no evidence to show that the defendant and appellant had murder in her heart when she
entered the chapel that fatal night. Avelina is not a criminal by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of our country girls, who still possess the consolation of religious
hope in a world where so many others have hopelessly lost the faith of their elders and now drifting away they know not
where.
The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first
assignment of error to a certain degree.
In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner
and form and under the circumstances above indicated, the defendant and appellant committed the crime of homicide,
with no aggravating circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to
be considered in her favor; and, in accordance with the provisions of article 69 of the Revised Penal Code, she is entitled
to a reduction by one or two degrees in the penalty to be imposed upon her. And considering the circumstances of the
instant case, the defendant and appellant should be accorded the most liberal consideration possible under the law
(United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472; People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees,
the penalty to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of
Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant
should be sentenced to an indeterminate penalty ranging from arresto mayor in its medium degree, to prision
correccional in its medium degree. Consequently, with the modification of judgment appealed from, defendant and
appellant Avelina Jaurigue is hereby sentenced to an indeterminate penalty ranging from two months and one day
of arresto mayor, as minimum, to two years, four months, and one day ofprision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in the sum of P2,000, and
to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency, and
to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and the
knife marked Exhibit B ordered confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.

Separate Opinions
HILADO, J., concurring:
In past dissenting and concurring opinions my view regarding the validity or nullity of judicial proceedings in the Japanesesponsored courts which functioned in the Philippines during the Japanese occupation has been consistent. I am not
abandoning it. But in deference to the majority who sustain the opposite view, and because no party litigant herein has
raised the question, I have taken part in the consideration of this case on the merits. And, voting on the merits, I concur in
the foregoing decision penned by Justice De Joya.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12883

November 26, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
CLEMENTE AMPAR, defendant-appellant.
Filemon A. Cosio for appellant.
Acting Attorney-General Paredes for appellee.

MALCOLM, J.:
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast pig
was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked
Modesto Patobo for some of the delicacy. Patobo's answer was; "There is no more. Come here and I will make roast pig
of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like that, I am not
a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down, the accused came
up behind him and struck him on the head with an ax, causing death the following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial
court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia. The
court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would not appear
to be justified. This mitigating circumstance was that the act was committed in the immediate vindication of a grave
offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied.
That there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted.
Whether these remarks can properly be classed as "a grave offense" is more uncertain. The Supreme court of Spain has
held the words "gato que araaba a todo el mundo," "landrones," and "era tonto, como toda su familia" as not sufficient to
justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the
same court has held the words "tan landron eres tu como tu padre" to be a grave offense. (Decision of October 22, 1894.)
We consider that these authorities hardly put the facts of the present case in the proper light. The offense which the
defendant was endeavoring to vindicate would to the average person be considered as a mere trifle. But to this defendant,
an old man, it evidently was a serious matter to be made the butt of a joke in the presence of so many guests. Hence, it is
believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly
sentenced him to the minimum degree of the penalty provided for the crime of murder. lawph!1.net
Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and one day
of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto
Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against the
appellant. So ordered.
Arellano, C.J., Torres, and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Street, J., did not sign.
Separate Opinions
CARSON, J., concurring:
I concur. I think, however, that the extenuating circumstances attending the commission of the crime fall under the
provisions of section 7 of the Penal Code rather than under the provisions of section 5 of that Code as indicated in the
opinion.
PP v. Ignas (Sept 30, 2003)

Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-32042 December 17, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO BENITO y RESTUBOG accused-appellant.
RESOLUTION

AQUINO, J.:
Alberto Benito was sentenced to death by the Circuit Criminal Court of Manila after he pleaded guilty to the charge of
murder for having shot with a .22 caliber revolver Pedro Moncayo, Jr. on December 12, 1969. The killing was qualified by
treachery and aggravated by premeditation and disregard of rank. It was mitigated by plea of guilty.
After a mandatory review of the death sentence, this Court in its decision of February 13, 1975 affirmed the judgment of
conviction. It appreciated in Benito's favor the mitigating circumstance of voluntary surrender. The penalty was reduced
to reclusion perpetua. (People vs. Benito, 62 SCRA 351).
Benito filed a motion for reconsideration. He contends that he is entitled to the mitigating circumstance of immediate
vindication of a grave offense and that the aggravating circumstances of disregard of rank should not be appreciated
against him.
Benito, 26, a native of Naga City, in his sworn statement , which was taken, about five hours after the shooting, by
Corporal E. Cortez and Patrolmen J. de la Cruz, Jr., and
H. Roxas of the Manila Police, recounted the background and circumstances of the tragic incident in this manner (Exh. A):
... alam ninyo ho, ako ay dating empleyado ng Civil Service Commission sa kalye P. Paredes, Sampaloc,
Maynila, at ako ay Clerk 2 sa Administrative Division at ako ay nagumpisa ng pagtratrabaho sa Civil
Service magmula pa noong November, 1965 ng ako ay nasuspende sa aking trabaho dahil kinargohan
nila ako ng "DISHONESTY" at nasuspende ako ng 60 days at nabalik ako sa trabaho noong January
1966 pero kinarguhan uli nila ako ng "MALVERSARTION OF PUBLIC FUNDS, QUALIFIED THEFT,
ESTAFA at FALSIFICATION OF PUBLIC DOCUMENT at dinimanda din ako ng Civil Service ng
Administrative case ng "DISHONESTY" at dinismiss na ako sa trabaho ni Commissioner Subido noong
February 16, 1966.
At magmula noon ay nawalan na ako ng trabaho pero lahat ho noong kinargo nila sa akin na sinabi ko sa
inyo ay "fabricated" lang ang mga evidensiya at ang gumawa ho noong ay ang binaril ko kanina na si
PEDRO MONCAYO JR. Y RAMOS at naka pending pa ngayon sa City Fiscal ng Maynila kay Asst. Fiscal
Magat at iyon namang "dismissal order" ni Commissioner Subido ay inapela ko sa Civil Service Board of
Appeals.

Magmula noong Idinismiss nila ako sa aking trabaho dahil sa "fabricated" charges ay naghirap na ko sa
aking buhay at nahihiya ako sa mga kaibigan ko. Ako ay assign(ed) sa collecting department noon at
nagagalit sa akin ang mga empleyado ng Civil Service dahil mahigpit ako sa kanila.
Noong bandang alas 7:00 ng gabi noong Dec. 11, 1969, ako ay nagpunta sa Civil Service sa kalye
Paredes at nakita ko si PEDRO MONCAYO, Jr. at kinausap ko siya at tinanong ko siya na iyong kaso ko
ay matagal na at hindi pa natatapos at baka matulungan niya ako at ang sagot niya ay "UMALIS KA NA
NGA DIYAN BAKA MAY MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO" at umalis na ko.
Kaninang bandang alas 11:00 ng umaga ay nagkita kami ni PEDRO MONCAYO Jr. sa loob ng
compound ng Civil Service at sa harapan ng maraming tao sinabi niya na "NAGIISTAMBAY PALA DITO
ANG MAGNANAKAW" kaya ang ginawa ko ay umalis na ako.
Kaninang bandang alas 5:25 ng hapon, nitong araw na ito, Desiyembre 12, 1969, nakita ko si PEDRO
MONCAYO Jr. na nagmamanejo noong kotse niya sa kalye P. Paredes sa tapat ng Civil Service,
sinundan ko siya at pagliko ng kotse niya sa kanto ng P. Paredes at Lepanto, Sampaloc, Maynila, ay
binaril ko siya ng walong beses at tinamaan siya at napatumba siya sa kaniyang upuan sa kotse.
Pagkatapos ay tumawag ako sa telepono sa MPD Headquarters para sumurender at kayo nga ang
dumating kasama ninyo iyong mga kasama ninyo.
Benito surrendered to the police the revolver (Exh. C) used in the shooting with the eight empty shells of the bullets which
he had fired at Moncayo.
The Police report contains the following background and description of the killing (Exh. B):
According to the suspect, he was a former employee of the Civil Service Commission at its main office
located at P. Paredes, Sampaloc. Mla., and was assigned as Clerk 2 in the Administrative Division from
Nov. 1963 continuously up to Nov. 1965 when he was suspended for "DISHONESTY".
After two months, he was reinstated but was criminally charged for QUALIFIED THEFT,
MALVERSATION OF PUBLIC FUNDS, ESTAFA and FALSIFICATION OF PUBLIC DOCUMENTS and
administratively charged for "DISHONESTY" culminating in his dismissal from the Civil Service on
February 1966.
The aforecited criminal charges against the suspect was allegedly investigated by Asst. Fiscal MAGAT.
Records from the CRID, MPD, reveals that on Dec. 6, 1966, Hon. Judge ROAN of the City Court of Mla.
issued a Warrant No. E-316758 for the arrest of the suspect for the crime of ESTAFA.
On May 24, 1969, Hon. Judge JUAN O. REYES of the CFI of Mla. issued an order No. OA-87409 for the
arrest of the suspect for the crime of MALVERSATION OF PUBLIC FUNDS. According to the suspect,
the aforecited criminal and administrative charges filed him were allegedly instigated and contrived by the
victim and since the time of his dismissal, he was allegedly jobless.
On Dec. 11, 1969, the suspect went to the Civil Service at P. Paredes st. and requested the victim to help
him in his cases but the former allegedly uttered to the suspect "UMALIS KA NGA DIYAN BAKA MAY
MANGYARI PA SA IYO AT BAKA IPAYARI KITA DITO".
The suspect left and returned the following morning at 11:00 a.m. of Dec. 12, 1969, and when they met
again, the victim allegedly remarked in the presence of many people, "NAGIISTAMBAY PALA DITO ANG
MAGNANAKAW". The suspect who was humiliated and incensed, left.
At about 5:25 p.m. of that same day, Dec. 12, 1969, the suspect who was armed with an unlicensed Cal.
22 black revolver (w/ SN - P-5317, Trademarked "SENTINEL", SQUIRES BINGHAM MFG. CO. INC.
MLA. P.I.) loaded with nine (9) live Cal. 22 bullets in its cylinder, waited for the victim outside the Civil
Service compound at P. Paredes st. Sampaloc, Mla.

The victim showed up and drove his green Chevrolet 2 door car (w/ Plate No.
L-10578 Mla. 69) along P. Paredes st. The suspect with evident premeditation, surreptitiously followed
the victim and when the latter's car was at a full stop at the corner of Lepanto and P. Paredes sts. due to
heavy traffic of motor vehicles, the suspect without any warning or provocation, suddenly and
treacherously shot the victim eight (8) times on the head and different parts of the body at closer range
which consequently caused the latter's death on the spot inside his car.
The suspect then fled while the victim was conveyed on board a red private car (w/ Plate No. L-55117) by
his co-employees (composed of VICTOR VILLAR, ELEUTERIO MENDOZA & FORTUNATO JOSE Jr.) to
the FEU Hospital. Unfortunately, the victim was pronounced DOA by Dr. P. PAHUTAN, SOD, at 5:40 p.m.
of Dec. 12, 1969.
The thirty-six year old victim, a certified public accountant, was the Assistant Chief of the Personnel Transactions Division
and Acting Chief, Administrative Division of the Civil Service Commission (Exh. E to E-2). The accused was a clerk in the
cash section, Administrative Division of the Commission, receiving P1,884 per annum (Exh. D). He started working in the
Commission on November 7, 1963.
On October 21, 1965 Moncayo, as an administrative officer, reported to the Commissioner of Civil Service that Benito
admitted having malversed an amount between P4,000 and P5,000 from his sales of examination fee stamps. Moncayo's
report reads as follows (Exh. F):
MEMORANDUM for
The Commissioner
Through Proper Channels
This refers to the case of Mr. ALBERTO R. BENITO, Clerk II in the Administrative Division of this
Commission, who, as had previously been reported, malversed public funds in the amount of
approximately P5,000.00 out of his collections from the sale of examination fee stamps.
I wish to state that this matter came to my attention on the evening of March 1, 1965 when Mr. Teodoro
Abarquez, Acting Cashier I, reported to me that fifty (50) money orders at P2.00 each with a total vlaue of
P100.00 were missing from a bundle of money orders received from the Provincial Treasurer of Cotabato,
which were kept by him in one of the cabinets inside the Cashier's Cashier' room.
At the same time he also informed me that he suspected that Mr. Benito stole the missing money orders.
His suspicion arose from the fact that he found several money orders marked "Cotabato" as their place of
issue among the cash receipts turned over to him by Mr. Benito that afternoon as his collection from the
sale of examination fee stamps. Mr. Abarquez showed to me the said money orders issued in Cotabato
which were turned over to him by Mr. Benito and after checking their serial numbers with the records of
list of remittances on file, we were able to establish definitely the fact that the said money orders were
those missing.
It may be stated that at that time, Mr. Benito was assigned to work in the Cash Section and one of his
duties was to sell examination fee stamps to applicants for examinations. It was then the practice of the
cashier to issue to Mr. Benito in the morning examination fee stamps to be sold during the day and in the
afternoon he turned over to the Cashier the proceeds from the sale of stamps including the unsold
stamps issued to him. After considering the work performed by Mr. Benito, it became evident that he
succeeded in malversing the amount of P100.00 by substituting equivalent amount of money orders in the
place of the cash extracted by him from his daily collections from the sale of examination fee stamps
when he clears his accountability with the Cashier.
The following day, I confronted Mr. Benito in the presence of Mr. Abarquez and ask him whether he had
something to do with the loss of the fifty (50) money orders at P2.00 each. At first he denied, but when I
asked him where he obtained the money orders issued in Cotabato which were included in his collections
the day preceding, he admitted having stolen the missing money orders.
Having confessed his guiltk, I then asked Mr. Benito when he started committing the said irregularity and
how much in all did he actually malversed out of his daily collections from the time that he started the

anomaly. He stated in the presence of Mr. Abarquez that he started in January, 1965 and that although
he did not know exactly the total amount malversed by him, he believed the amount to be between
P4,000.00 to P5,000.00. He also confessed that he used the money orders remitted by the Provincial
Treasurer of Negros Occidental in the amount of P3,436.00 in substituting various amounts extracted by
him from his daily cash collections and used by him for personal purposes.
It appears from the records that the List of Remittances covering the money orders received from the
Provincial Treasurer of Negros Occidental was duly receipted by Mr. Benito. He was supposed to issue
an Official Receipt therefor in favor of the said Provincial Treasurer and then turn over to the Cashier the
amount involved for deposit to the National Treasurer. The said List of Remittances, duly signed by Mr.
Benito, is enclosed for use as evidence in this case.
I told Mr. Benito that I cannot do anything but report the matter to the Commissioner. However, he
pleaded that he be given first an opportunity to restore the amount before I make my report in order that
the penalty that may be imposed upon him may be lessened to a certain degree. As I thought it wise in
the interest of the service to recover the amount involved, I allowed him to go and see his parents in Naga
City to raise the amount in question.
After two weeks, Mr. Benito informed me that his parents filed an application for a loan with the
Government Service Insurance System and that the proceeds of the said loan which he intended to use
in restoring the amount malversed by him were expected to be released during the last week of May,
1965. However, when the month of May, 1965 elapsed without the amount involved having been
restored, I conferred with Mr. del Prado, my immediate superior and asked him whether we should wait
further for the release of the said loan in order that the amount involved may be recovered. Mr. Prado
consented to giving him a little more time.
When Mr. Benito still failed to restore the amount in question by the end of June, 1965, I got hold of him
on July 5, 1965 and together with Messrs. del Prado, Abarquez and Gatchalian, also of this Commission,
brought him before Deputy Commissioner A. L. Buenaventura and reported the entire matter to the
Deputy Commissioner. In the presence of Messrs. del Prado, Abarquez, Gatchalian and myself, Mr.
Benito admitted readily and voluntarily before the Deputy Commissioner the commission of the offense of
malversation of public funds as stated above.
In view of the foregoing, it is recommended that Mr. Benito be charged formally and that he be suspended
from office immediately considering the gravity of the offense committed by him.
(Sgd.) PEDRO R.
MONCAYO
Administrative Officer II
Benito was charged with dishonesty. He had admitted to Deputy Commissioner Alipio Buenaventura that he had
misappropriated his collections and spent the amount in nightclubs and pleasure spots and for personal purposes. The
decision dismissing him from the service reads as follows (Exh. G):
This is an administrative case against Mr. Alberto R. Benito, Clerk I, Cash Section, Administrative Division
of this Office, for dishonesty.
The following excerpts from the letter dated October 22, 1965 of the Commissioner of Civil Service
connect respondent with the alleged misappropriation of public funds representing his collection from the
sale of examination fee stamps and constitute the basis of the instant case against him:
An investigation made by this Commission shows that you malversed public funds in the
amount of P3,536.00 out of your collections from the sale of examination fee stamps
while in the performance of your official duties as Clerk II in the Cash Section,
Administrative Division of this Office. It appears that you succeeded in malversing the
above-stated amount from your cash collections by substituting in lieu thereof money
orders worth P3,436.00 remitted to this Commission by the Provincial Treasurer of
Negros Occidental which were duly receipted for by you. It also appears that you

extracted from a bundle of money orders remitted by the Provincial Treasurer of Cotabato
the amount of P100.00 in money orders which were kept in one of the cabinets in the
Cashier's room.
Respondent denied the charge. He explained, among others, that money orders were always kept in the
Cashier's safe and he had no access to them. Although he admitted having received money orders
amounting to P3,436.00 remitted by the Provincial Treasurer of Negros Occidental and another
remittance of the Provincial Treasurer of Cotabato he, however, disclaimed having substituted the same
for cash collections in his sale of examination fee stamps. He reasoned out further that he could not be
charged with malversation of public funds inasmuch as he was not then an accountable officer.
It appears that respondent, as Clerk in the Cash Section, performs, among other duties, the selling of
examination fee stamps, receiving payments therefor, and receiving remittances in form of cash and/or
money orders from provincial treasurers in connection with examinations held in the provinces. It was also
his duty to issue official receipts for said remittances. In the course of the performance of his duties, he
received said remittances from the Provincial Treasurers of Negros Occidental and Cotabato, but no
official receipts were issued by him, as shown by the reply telegrams pertaining thereto. While records
disclose that remittances from the province of Cotabato were submitted to the Cashier of the Civil Service
Commission, there is no evidence showing that remittances from Negros Occidental were likewise
submitted.
Investigation further reveals that 50 money orders were discovered missing from the remittances of
Cotabato Provincial Treasurer which were kept in the cabinet of the Cashier. On or about March 2, 1965,
the Cashier of the Commission noticed that 15 money orders turned over by respondent as part of his
collections in the sale of examination fee stamps were among the missing money orders. This triggered
off the filing of this case against the respondent.
On July 5, 1965, respondent admitted before the then Deputy Commissioner Alipio Buenaventura having
misappropriated an aggregate amount ranging from P3,000 to P7,000, which he spent in night clubs,
pleasure spots and other personal benefits. Despite the testimonies of several witnesses regarding his
confession, including that of the then Deputy Commissioner himself, respondent, when asked to take the
stand, denied his previous admission.
Instead, he argued that the cash and accounts of the Cashier of the Civil Service Commission, when
examined by representatives of the Auditor's Office, did not indicate any shortage and therefore there was
no irregularity involved. This argument is not well taken. Inasmuch as the remittances received by
respondent from said Provincial Treasurers of Negros Occidental and Cotabato were not in turn given
corresponding official receipts, naturally, the same were not reflected on the Cashier's cash book.
The weakness of respondent's defense lies not so much on its failure to establish convincingly his
innocence as its irreconciliability with established facts. Obviously, none of the circumstances in this case
is consistent with his claim of innocence. On the contrary, all of them put together produce reasonable
assurance of respondent's guilt.
In view of the foregoing, this Office finds respondent Alberto R. Benito guilty as charged. Wherefore, he is
dismissed from the service effective upon his receipt of this decision.
In the interest of the service this decision is executed also on the date of his receipt of this decision.
Benito appealed to the Civil Service Board of Appeals from the Commissioner's decision dismissing him. The appeal was
pending at the time when he assassinated Moncayo (Exh. I).
The foregoing antecedents of the assassination shed light on the remark which the victim, Moncayo, allegedly made upon
seeing Benito in the compound of the Civil Service Commission near the canteen at eleven o'clock in the morning of
December 12, 1969 (about six hours before the shooting): "Nagiistambay pala dito and magnanakaw." (Exh. A or 1); or,
as Benito testified, Moncayo said: "Hindi ko alam na itong Civil Service pala ay istambayan ng magnanakaw." (27 tsn
December 26, 1969).

10

Mitigating circumstance of immediate vindication of a grave offense. Benito contends that Moncayo insulted him when
he (Moncayo) remarked that a thief was loitering in the premises of the Civil Service Commission. Benito argues that that
remark "was tantamount to kicking a man already down and to rubbing salt into a raw wound" and that, as it was made
publicly and in a loud voice, he was exposed to ridicule in the presence of his officemates.
Benito attached to his motion a copy of the decision of Judge Jose C. Colayco dated January 16, 1975, acquitting him of
the charge of malversation in connection with his alleged misappropriation of the fees collected from the examinees of the
1974 patrolman examination. That same decision makes reference to Benito's exoneration from the administrative charge.
The court's decision reads as follows:
The accused is charged with malversation under the following information:
That on or about and during the period comprised between October 17, 1964, to
February, 1965, inclusive, in the City of Manila Philippines, the said accused being then
employed as Clerk I of the Civil Service Commission, a branch of the government of the
Republic of the Philippines, among whose duties were to accept payments of fees
collected from the examinees of the 1964 Patrolman examination, and by reason of his
said position received the total amount of P3,536.00, with the duty to turn over and/or
account for his collections to the cashier of the Civil Service Commission immediately or
upon demand but the said accused once in possession of the said amount of P3,536.00,
with intent to defraud, despite repeated demands made upon him to turn over and to
account for the same, did then and there willfully, unlawfully and feloniously
misappropriate, misapply and convert and malverse the said amount to his own personal
use and benefit, to the detriment of public interest and to the damage and prejudice of the
said Civil Service Commission in the said amount of P3,536.00, Philippine currency.
Contrary to law.
The evidence shows that the accused had an appointment as clerk in the Civil Service Commission from
May 27, 1964, as clerk I, range 23 from June 1, 1965 and as clerk I, range 26 from July 23, 1965
(Exhibits A, A-1, A-2). He had the duty, among others, of selling Civil Service examination- fee stamps
and to receive payment therefor, as well as to receive remittances of money orders and checks from the
provincial treasurers for payments of examination fee stamps (Exhibit B).
Teodoro Abarquez, a cashier of the Civil Service Commission during the period alleged in the information,
testified in his direct examination that Benito was working in his office; that one of the duties that he
assigned to him was to sell examination fee stamps; that it was customary for him to give stamps to
Benito at the start of office hours in the morning and that Benito turned over to him the proceeds of the
sale, as well as the unsold stamps, at the close of office hours in the afternoon; that one afternoon he
noticed that Benito turned over to him 50 money orders from Cotabato, together with some cash, as
proceeds of the sale of stamps for that day; that he remembered that he was missing money orders from
one of his cabinets where he kept them; that when he discovered that the 50 money orders were those
which were missing, he reported the matter to Pedro Moncayo, the chief administrative officer; on March
1, 1965; that the money orders were for P2.00 each, and were payments of the examination fees from
Cotabato (Exhibit F); that he discovered the loss of the 50 money orders on February 28, 1965 and
reported it to Moncayo on March 1, 1965, together with the list of missing orders (Exhibit M); that after
receiving the report, Moncayo called Benito to the office of Abarquez where he admitted taking the
missing money orders; that Moncayo submitted a memorandum to the Commissioner, dated October 21,
1965, after giving Benito a chance to refund the value of the money orders (Exhibit O). Alipio
Buenaventura, acting Deputy Commissioner at the time, and Eliseo S. Gatchalian, budget officer, testified
that when Benito was confronted with the report of Moncayo and Abarquez, he admitted that he
misappropriated about P3,000.00 because of bad company and that he asked for a chance to refund the
money.
Under cross-examination, Abarquez elucidated his testimony in his direct examination and explained that
when Benito turned over the proceeds of the sale of stamps for that particular day, he kept the sum of
P100.00 and replaced it with the 50 money orders that he had taken from the cashier's office to cover up
the money that he had pocketed. When he was asked when he discovered that Benito substituted the 50

11

money orders from Cotabato, he answered that he checked them the following night (March 2, 1965) with
the list of money orders remitted by the Provincial treasurer (Exhibits F, F-1); but when he was confronted
with his affidavit which he executed on April 18, 1966 (Exhibit R), he reluctantly admitted that he had only
verified 15 money orders missing as of April 18, 1966 and that he did not keep any record of the money
and the money orders given to him by Benito on March 1, 1965.
He also admitted that the room where he kept the money orders in an unlocked drawer was also
occupied by two other persons, and that this was the first time that he had not followed the usual
procedure of keeping them in the safe. He further admitted that, although regular examinations were
conducted during the period of October 1, 1964 to February 28, 1965 by the examiners of the Civil
Service Commission and the auditors of the General Auditing Office, they did not find any shortage in the
accounts of Benito.
Finally, when the Court asked him what happened to the 50 money orders, at first he hinted that they
were not deposited with the Bureau of Treasury because they were reported missing; but when pressed
further, he said that he deposited them, but did not issue any official receipt for them. When asked if he
had any evidence to show that they were actually deposited, he admitted that he could not even
remember when he deposited them.
The testimony of Teodoro Abarquez upon which the prosecution has built its case, is too weak and shaky
to sustain a finding of guilt because of his glaring inconsistencies, contradictions and gaps in memory.
The prosecution has failed to present convincing evidence that the 50 money orders were even lost:
According to Abarquez he had only verified the loss of 15 on April 18, 1966, although he testified earlier
that he determined the loss of 50 the night after March 1, 1965.
The examiners of the Civil Service Commission and the auditors of the General Auditing Office did not
find any irregularity in the cash accountability of Benito, according to Abarquez. This was corroborated by
Romeo Jarabelo, auditor of the Commission on Audit and Miguel Games, auditing examiner assigned to
the Civil Service Commission, who testified for the accused. Benito was in fact exonorated the
administrative charge filed against him for the time same transaction (Exhibit E).
In fact, the testimony of Abarquez under cross-examination that he has not issued any official receipt for
the 50 money orders and his inability to prove that he deposited them with the bureau of Treasury gives
rise to the suspicion that other persons, not the accused, may have stolen the 50 missing money orders.
Even without taking into account the testimony of the accused, who denied the testimonies of the
witnesses for the prosecution, the court believes that the prosecution has failed to prove the guilt of the
accused.
WHEREFORE, judgment is hereby rendered acquitting the accused, with costs de oficio.
The Solicitor General argues that the defamatory remark imputed to Moncayo cannot give rise to the mitigating
circumstance of vindication of a grave offense because it was not specifically directed at Benito. The prosecution notes
that the remark was uttered by Moncayo at eleven o'clock in the morning. According to Benito's testimony (not consistent
with his confession), he saw Moncayo three hours later or at two o'clock in the afternoon and inquired from him about his
case and Moncayo said that he had already submitted his report and he could not do anything more about Benito's case
(26 tan). As already stated, the assassination was perpetrated at around five o'clock in the afternoon of the same day.
Assuming that Moncayo's remark was directed at Benito, we see no justification under the circumstances recited above
for changing our prior opinion that the mitigating circumstance of "haber ejecutado el hecho en vindicacion proxima de
una ofensa grave, causada al autor del delito," cannot be appreciated in Benito's favor. As aptly stated by the ponente,
Justice Esguerra, Benito "had more than sufficient time to suppress his emotion over said remark if he ever did resent it."
"La apreciacion de la proximidad queda al arbitrio del tribunal; el Tribunal Supremo (de Espaa) no ha apreciado la
proximidad ... cuando la ofensa se realizo por la maana y el delito tuvo lugar por la tarde (Sentencia de 11 noviembre
1921); por regla general no es proxima cuando transcurre tiempo suficiente para la razon recobre su imperio
sobreponiendose a la pasion (Sentencias de 28 mayo 1882, 4 noviembre 1893, 24 junio 1908, etc.) ... Si falta el requisito
de la proximidad debe desestimarse (Sentencia de 3 julio 1950). Exige gravedad en la ofensa y proximada en la
reaccion." (Note 9, 1 Cuello Calon, Derecho Penal. 1975 Ed., p. 564).

12

The Spanish Supreme Court also held that "no puede apreciarse esta circunstancia atenuante en favor del autor de un
homicidio cometido 'algunas horas despues de haberle invitado el interfecto a renir y golpeado en el pecho con las
manos', porque el tiempo transcurrido entre los golpes y la muerte fue suficiente para que el animo del reo se serenase
(Sentencia de 24 Junio 1908, Gaceta 28 Agosto 1909, IV-V Enciclopedia Juridica Espaola 1182).
The six-hour interval between the alleged grave offense committed by Moncayo against Benito and the assassination was
more than sufficient to enable Benito to recover his serenity. But instead of using that time to regain his composure, he
evolved the plan of liquidating Moncayo after office hours. Benito literally ambushed Moncayo just a few minutes after the
victim had left the office. He acted with treachery and evident premeditation in perpetrating the cold-blooded murder.
The facts of the case strongly suggest that what really impelled Benito to assassinate Moncayo was not the latter's
alleged defamatory remark that the Civil Service Commission compound was a hangout for a thief or for thieves but the
refusal of Moncayo to change his report so as to favor Benito. Benito did not act primarily to vindicate an alleged grave
offense to himself but mainly to chastise Moncayo for having exposed the alleged anomalies or defraudation committed
by Benito and for obstinately refusing to change his report.
Aggravating circumstance of disregard of rank. Benito contends that disregard of rank should not be considered against
him because there was no evidence that he "deliberately intended to offend or insult the rank" of Moncayo. That
contention has no merit.
It should be borne in mind that the victim was a ranking official of the Civil Service Commission and that the killer was a
clerk in the same office who resented the victim's condemnatory report against him. In that situation, the existence of the
aggravating circumstance of "desprecio del respeto que por la dignidad mereciere el ofendido" is manifest.
The instant case is similar to a case where the chief of the secret service division killed his superior, the chief of police
(People vs. Hollero, 88 Phil. 167) and to the killing of the acting Spanish consul by his subordinate, the chancellor of the
consulate, who had misappropriated the funds of the consulate, which misappropriation was discovered by the victim
(People vs. Martinez Godinez, 106 Phil, 597, 606). In these two cases the murder was aggravated by disregard of rank.
WHEREFORE, the motion for reconsideration is denied.
SO ORDERED.
Teehankee, Makasiar, Antonio, Concepcion, Jr. and Martin, JJ., concur.
Castro, C. J., Fernando and Muoz Palma, JJ., concur in the result.
Separate Opinions
BARREDO, J., concurring:
Upon a review of the record, I am now convinced appellant cannot be credited with the mitigating circumstance of
indication of a grave offense.
Separate Opinions
BARREDO, J., concurring:
Upon a review of the record, I am now convinced appellant cannot be credited with the mitigating circumstance of
indication of a grave offense.
PP V. DAVAID (60 PHIL 93)

13

B. VINDICATION OF A GRAVE OFFENSE

US V. HICKS
In the case of U.S. vs. Hicks (14 Phil., 217), the accused therein and a woman illicitly lived together. Afterward, the
woman separated from him and lived with another man. Defendant, enraged by her conduct killed her. This court held that
no mitigating circumstances of passion and obfuscation was present, not even loss of reason and self-control produced by
jealousy as alleged by the defense, in as much as the only causes which mitigate the criminal responsibility for the loss of
self-control as such as originate from legitimate feelings, not those which arise from vicious, unworthy and immoral
passions.
he facts in this case are clearly distinguishable from those in the case of United States vs. Hicks (14 Phil. Rep., 217)
wherein the alleged passion and obfuscation of the accused had its origin in jealousy, aroused by the fact that the woman
in that case seemed to prefer the profligate attentions of the victim of the assault to those of the assailant, whose anger
against his victim was not based on any act of misconduct of which the assailant might legitimately complain.
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious,
unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the convict in that
case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate feelings." But in
that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had
resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and
carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal
design, behaving himself properly as he had planned to do beforehand.
SANICO V. CA (46 OG 93)

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-7094

March 29, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
HILARIO DE LA CRUZ, defendant-appellant.
F.C. Fisher for appellant.
Acting Attorney-General Harvey for appellee.
CARSON, J.:
The guilt of the defendant and appellant of the crime of homicide of which he was convicted in the court below is
conclusively established by the evidenced of record.
The trial court was of opinion that its commission was not marked by either aggravating or extenuating circumstances,
and sentenced the convict to fourteen years eight months and one day of reclusion temporal, the medium degree of the

14

penalty prescribed by the code. Burt we are of opinion that the extenuating circumstance set out in subsection 7 of article
9 should have been taken into consideration, and that the prescribed penalty should have been imposed in its minimum
degree. Subsection 7 of article 9 is as follows:
The following are extenuating circumstances:
xxx

xxx

xxx

That of having acted upon an impulse so powerful as naturally to have produced passion and obfuscation.
The evidence clearly discloses that the convict, in the heat of passion, killed the deceased, who had theretofore been
his querida (concubine or lover) upon discovering her in flagrante in carnal communication with a mutual acquaintance.
We think that under the circumstances the convict was entitled to have this fact taken into consideration in extenuation of
his offense under the provisions of the above-cited article.
This was the view taken by the Court of Spain upon a similar state of facts as set forth in its sentence of July 4, 1892,
which is summarized by Viada (p. 69, in question 19, art. 9 of vol. 6) as follows:
Shall he who kills a woman with whom he is living in concubinage for having caught her in her underclothes with
another party and afterwards shoots himself, inflicting a serious wound, be responsible for that crime with the
extenuating circumstance of having acted with violent passion and obfuscation? The Audiencia of Santiago de
Cuba did not so hold and its judgment was reversed by the supreme court for the improper disregard of article 9,
number 8, of the Penal Code for Cuba and Puerto Rico: "The facts held to be true by the trial court, and which
were the immediate cause of the crime by producing in the accused strong emotion which impelled him to the
criminal act and even to attempt his own life, were a sufficient impulse in the natural and ordinary course to
produce the violent passion and obfuscation which the law regards as a special reason for extenuation, and as
the judgment did not take into consideration the 8th circumstance of article 9 of the code, the Audiencia rendering
it seems to have violated this legal provision."
It is true that in the case of U.S. vs. Hicks (14 Phil. Rep.., 217), we held that the "causes which mitigate the criminal
responsibility for the loss of self-control are such as originate from legitimate feelings, not those which arise from vicious,
unworthy, and immoral passions," and declined to give the benefit of the provisions of this article to the convict in that
case on the ground that the alleged causes for his loss of self-control did not "originate from legitimate feelings." But in
that case we found as facts that:
All the foregoing circumstances conclusively prove that the accused, deliberately and after due reflection had
resolved to kill the woman who had left him for another man, and in order to accomplish his perverse intention
with safety, notwithstanding the fact that he was already provided with a clean and well-prepared weapon and
carried other loaded cartridges besides those already in his revolver, he entered the house, greeting everyone
courteously and conversed with his victim, in what appeared to be in a proper manner, disguising his intention
and calming her by his apparent repose and tranquility, doubtless in order to successfully accomplish his criminal
design, behaving himself properly as he had planned to do beforehand.
In the former case the cause alleged "passion and obfuscation" of the aggressor was the convict's vexation,
disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him,
which she had a perfect right to do; his reason for killing her being merely that he had elected to leave him and with his full
knowledge to go and live with another man. In the present case however, the impulse upon which defendant acted and
which naturally "produced passion and obfuscation" was not that the woman declined to have illicit relations with him, but
the sudden revelation that she was untrue to him, and his discovery of her in flagrante in the arms of another. As said by
the supreme court of Spain in the above-cited decision, this was a "sufficient impulse" in the ordinary and natural course
of things to produce the passion and obfuscation which the law declares to be one of the extenuating circumstances to be
taken into consideration by the court.
Modified by a finding that the commission of the crime was marked with the extenuating circumstance set out in
subsection 7 of article 9, and by the reduction of the penalty of fourteen years eight months and one day ofreclusion
temporal to twelve years and one day of reclusion temporal, the judgment of conviction and the sentence imposed by the
trial court should be and are hereby affirmed, with the costs of this instance against the appellant.

15

Arellano, C.J., Torres, Johnson and Trent, JJ., concur

Separate Opinions
MORELAND, J., concurring:
I agree except as to the application of the extenuating circumstance presented by paragraph 7, article 9, Penal Code. In
my judgment it is not warranted by the facts or the law.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46530

April 10, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CATALINO RABAO, defendant-appellant.
Jose F. Oreta for appellant.
Office of the Solicitor-General Ozaeta and Assistant Attorney Paredes, Jr. for appellee.
IMPERIAL, J.:
This is an appeal from a judgment of the Court of First Instance of Camarines Sur convicting the appellant of the crime of
parricide and sentencing him to an indeterminate penalty of from eight years and one day of prision mayor to twenty years
of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.
The information filed by the acting provincial fiscal of said province charged the defendant with parricide for having killed
his wife Salvacion Agawa on December 15, 1937, in the municipality of Naga, Province of Camarines Sur, which crime
was committed with evident premeditation and abuse of superior strength.
The defendant and the deceased Salvacion Agawa were married before the justice of the peace of Naga on January 15,
1936 and had since been born to the marriage. Since their marriage they had made their home in the house of Urbano
Rellora, who lived maritally with the mother of the accused. On the morning of December 15, 1937, when the defendant
was hardly awake after staying up late the previous night on account of the elections held in the municipality of Naga, he
noticed that his wife was preparing water with which to give the child a bath. He told his wife not to bathe the child
because it had a cold, but the wife insisted and a quarrel arose in the heat of which the accused punched his wife on the
abdomen. She fell seated on a sack of rice nearby and immediately suffered an attack of which she died in spite of the aid
rendered her by the accused himself and other persons who had arrived. The following morning Dr. Vicente Roxas
performed an autopsy and found that the spleen of the deceased had been hypertrophied due to an acute and chronic
malaria from which she had been suffering, and that death was caused by the hemorrhage of the spleen when it was
ruptured as a consequence of an external blow on the abdomen which might have been that delivered by the accused.
The defense alleges that the lower court erred in declaring that the accused hit the deceased on the abdomen, which
caused her death, instead of finding him, at most, guilty of parricide through reckless imprudence.
After an examination of the evidence, we are of the opinion that the lower court did not err in finding that the accused hit
the deceased on the abdomen which directly caused the rupture of her spleen producing thereby an internal hemorrhage
that caused her almost instant death. Urbano Rellora who, as stated before, was the owner of the house where the
defendant and the deceased lived and who maintained marital relations with the mother of the accused, testified positively
that he saw the accused punched his wife on the abdomen, as a result of which she fell seated on a sack of rice and that
very moment she had an attack, became unconscious and expired. This testimony is corroborated by Dr. Roxas who
performed the autopsy, when he declared that the death was caused by the hemorrhage produced by the rupture of the
spleen which rupture was caused by an external blow on the abdomen of the deceased. The defendant himself, in his

16

sworn declaration (Exhibit C) subscribed before the justice of the peace of Naga, voluntarily admitted having hit his wife
on the abdomen with his fist when she said things that offended and made him nervous. The aggression was likewise
corroborated by another eye-witness, Raymundo Hilano, who declared that he was at that time passing in front of the
defendant's house when he heard and saw him quarrelling with his wife and that the defendant was delivering blows on
his wife. The testimony of this witness however, seems incredible and deserves no merit for he testified having seen the
aggression through a window which was three and a half meters high from the ground where he stood. Considering the
height of the window and the location of the witness, it is clear that he could not have seen what was happening inside the
house.
The defendant's act is not mere reckless imprudence, as the defense contends, since under article 365 of the Revised
Penal Code the acts that go to make up reckless imprudence must be lawful in themselves, and the attack consisting in
the blow the defendant dealt his wife is certainly not lawful, since it transgresses the Revised Penal Code itself, which
expressly prohibits it under pain of punishment.
The facts proven constitute the crime of parricide defined by article 246 of the Revised Penal Code, and in its commission
there were present the following mitigating circumstances considered by the lower court in favor of the defendant: lack of
intention to commit so grave a crime (article 13 [3], Revised Penal Code); having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation (article 13 [6]); having surrendered himself to the authorities
immediately after the commission of the crime (article 13 [7]); with no aggravating circumstance. As to the penalty
imposed, we find that it is not in accordance with that prescribed by the law. Under article 246 of the Revised Penal Code
the crime of parricide is punished with reclusion perpetua to death. These penalties are indivisible and the Revised Penal
Code provides, in article 63, rule 3, that whenever there is present some mitigating circumstance with no aggravating one,
the lesser penalty shall be applied. In conformity with this legal provision, the penalty that should be imposed on the
accused is that of reclusion perpetua.
After reviewing the facts, we are convinced that the defendant did not really have the intention of committing so grave a
crime as parricide. The quarrel that led to the aggression had its origin from the natural and justifiable desire of the
defendant, as a father, to prevent his child, which was then ill, from being given a bath. If, under the circumstances, he
transgressed the law by an unjust attack on his wife, he is, nevertheless, deserving of the mitigating circumstances
allowed in his favor. We invoke, for this reason, article 5, paragraph 2, of the Revised Penal Code, and recommended to
his Excellency, the President of the Philippines, the commutation of the penalty imposed on the defendant in this decision.
Modifying the appealed judgment, we declare the defendant Catalino Rabao guilty of the crime of parricide and hereby
sentenced him to reclusion perpetua, and to the accessory penalties provided in article 41 of the Revised Penal Code, to
indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs in both instances. So ordered.
Avancea, C.J., Villa-Real, Diaz, Laurel, Concepcion and Moran, JJ., concur.
D. VOLUNTARY SURRENDER
EN BANC
[G.R. No. 146247. September 17, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. EDGAR DAWATON, accused.

DECISION
BELLOSILLO, J.:

EDGAR DAWATON was found by the trial court guilty of murder qualified by treachery and sentenced to death, ordered to
indemnify the heirs of the victim P50,000.00 plus the accessory penalties provided by law, without subsidiary
imprisonment in case of insolvency, and to pay the costs of suit.[1]

17

An Information[2] for murder qualified by treachery and evident premeditation was filed against Edgar Dawaton on 11
March 1999. When first arraigned he pleaded not guilty,[3] but during the pre-trial on 7 May 1999, he offered to plead
guilty to the lesser offense of homicide but was rejected by the prosecution, hence, the case proceeded to trial.

The prosecution presented as witnesses the very persons who were with the accused and the victim during the incident,
namely, Domingo Reyes and Esmeraldo Cortez. The prosecution also presented Generosa Tupaz, the mother of the
victim, to prove the civil liability of the accused.

The evidence for the prosecution: On 20 September 1998 Esmeraldo Cortez was entertaining visitors in his house in Sitio
Garden, Brgy. Paltic, Dingalan, Aurora. His brother-in-law Edgar Dawaton and kumpadre Leonides Lavares dropped by at
about 12:00 o'clock noon followed by Domingo Reyes shortly after. All three (3) guests of Esmeraldo were residents of
Sitio Garden. They started drinking soon after. At about 3:00 o'clock in the afternoon and after having consumed four (4)
bottles of gin, they went to the house of Amado Dawaton, Edgar's uncle, located about twenty (20) meters away from
Esmeraldo's house. They stayed at the balcony of the house and continued drinking. Amado Dawaton was not in.

Already drunk, Leonides decided to sleep on a papag or wooden bench, lying down on his right side facing Domingo and
Edgar using his right hand for a pillow. Edgar, Domingo and Esmeraldo continued drinking until they finished another
bottle of gin.

At about 3:30 in the afternoon, twenty (20) minutes after Leonides had gone to sleep, Edgar stood up and left for his
house. When he returned he brought with him a stainless knife with a blade 2 to 3 inches long. Without a word, he
approached Leonides who was sleeping and stabbed him near the base of his neck.[4] Awakened and surprised,
Leonides got up and blurted: "Bakit Pare, bakit?"[5] Instead of answering, Edgar again stabbed Leonides on the upper
part of his neck, spilling blood on Leonides' arm.

Leonides attempted to flee but Edgar who was much bigger grabbed the collar of his shirt and thus effectively prevented
him from running away. Edgar then repeatedly stabbed Leonides who, despite Edgar's firm hold on him, was still able to
move about twenty (20) meters away from the house of Amado Dawaton before he fell to the ground at the back of
Esmeraldo's house. But even then, Edgar still continued to stab him. Edgar only stopped stabbing Leonides when the
latter already expired. Edgar then ran away towards the house of his uncle Carlito Baras situated behind the cockpit.

Domingo and Esmeraldo were positioned a few meters away from where Leonides was sleeping when he was initially
assaulted by Edgar. They were shocked by what happened but other than pleading for Edgar to stop they were unable to
help Leonides.

Domingo left for his house soon after the stabbing started as he did not want to get involved. Nonetheless he felt pity for
Leonides so he returned a few minutes later.

18

By then, Leonides was already dead and people had already gathered at the site. The mayor who was in a nearby cement
factory arrived and instructed them not to go near the body. They pointed to the direction where Edgar fled. Edgar was
later arrested at the house of his uncle, Carlito Baras, at Sitio Aves, Brgy. Paltic, Dingalan.

Accused-appellant Edgar Dawaton was the sole witness for the defense. He did not deny that he stabbed Leonides
Lavares but insisted that he was provoked into stabbing him. Edgar claimed that the night prior to the stabbing incident, or
on 19 September 1998, his uncle Armando Ramirez went to his house to welcome his return from Cavite where he
worked as a carpenter. They started drinking gin at about 7:00 o'clock in the evening and ended at 3:00 o'clock in the
morning of the following day. He slept and woke up at 6:00 o'clock in the morning of 20 September 1998.

Apparently, he did not have enough of the prior evening's drinking orgy. He went to his uncle's house early that morning
and after his uncle bought two (2) bottles of gin they started drinking again. Domingo Reyes arrived at around 7:30 in the
morning and joined them. Esmeraldo Cortez joined them about 12:00 o'clock noon and bought two (2) more bottles of gin.
Later, the group with the exception of Armando Ramirez transferred to the house of Esmeraldo upon the latter's invitation
and drank two (2) more bottles of gin.

In Edgar's version of the stabbing incident, a drunk and angry Leonides arrived at about 2:30 in the afternoon and
demanded that they - he and Edgar - return candles (magbalikan [tayo] ng kandila).[6] Leonides was godfather of a son of
Edgar. Leonides also cursed and threatened to hang a grenade on Edgar (P - t - ng ina mo. Hintayin mo ako. Kukuha ako
ng granada at sasabitan kita!).[7]

According to Edgar, he tried to calm down Leonides but the latter insisted on going home purportedly to get a grenade.
Alarmed because he knew Leonides had a grenade, Edgar went home to look for a bladed weapon. He already had a
knife with him but he thought it was short. Not finding another weapon, he returned to Esmeraldo's house.

When he returned, Leonides was still in Esmeraldo's house and had joined in the drinking. He sat opposite Leonides who
resumed his tirades against him.

Again Leonides started to leave for his house purportedly to get a grenade. Afraid that Leonides would make good his
threat, Edgar held on to him and stabbed him. He did not know where and exactly how many times he struck Leonides but
he recalled doing it three (3) times before his mind went blank (nablangko).[8] Edgar also claimed that he was in this
mental condition when he left Leonides and ran to the house of Carlito Baras. He did not know that he had already killed
Leonides, only that he stabbed him thrice. He regained his senses only when he reached his uncle Carlito's house.

Edgar further said that he sought his uncle's help so he could surrender but he was told to wait because his uncle was
then taking a bath. It was while waiting for his uncle when the policemen arrived to arrest him. He maintained that he
voluntarily went with them.

The medico-legal certificate dated 24 September 1998 issued by Dr. Ernesto C. del Rosario[9] showed that the victim
sustained a stab wound at the back and ten (10) stab wounds in front. He also had slash wounds on his left hand and his

19

tongue was cut off. The immediate cause of death was determined to be "Hypovolemic Shock due to hemorrhage,
multiple stabbed (sic) wounds."[10]

On 20 October 1999 the parties entered into several stipulations which were embodied in an Order.[11] Specifically, they
admitted the veracity of the Sinumpaang Salaysay dated 21 September 1998 executed by SPO2 Ramil D. Gamboa and
PO3 Gerry M. Fabros,[12] the police officers who arrested the accused; the genuineness and due execution of the
medico-legal certificate issued by Dr. Ernesto C. del Rosario; and, the authenticity of the certificate of death[13] also
issued by Dr. del Rosario. Thus, the presentation of the arresting officers and Dr. del Rosario as witnesses was dispensed
with.

On 20 November 1999 the trial court convicted Edgar Dawaton of murder qualified by treachery and sentenced him to
death.

We affirm the conviction of accused-appellant; we however modify the penalty imposed on him.

The conclusion that accused-appellant murdered Leonides Lavares was sufficiently proved by the testimonies of
prosecution witnesses Domingo Reyes and Esmeraldo Cortez who both witnessed the fatal stabbing. This was not refuted
by the accused himself who admitted that he stabbed the victim three (3) times before his mind went blank and could no
longer recall what he did after that.

Treachery clearly attended the killing. The accused attacked the victim while the latter was in deep slumber owing to the
excessive amount of alcohol he imbibed. We are not persuaded by the version of the accused that the victim threatened
to harm him with a grenade and that it was only to prevent this from happening that he was forced to stab Leonides. We
defer instead to the judgment of the trial court which gave more credence to the version of the prosecution witnesses
inasmuch as it was in a better position to decide on the question of credibility, having heard the witnesses themselves and
observed their deportment during trial.

According to the prosecution witnesses, the victim had no chance to defend himself as he was dead drunk and fast
asleep. He had no inkling at all of what was going to happen to him since there was no prior argument or untoward
incident between him and the accused. From all indications they were on friendly terms; as in fact they were even
kumpadres. No one knew nor expected that when the accused momentarily excused himself, it was for the purpose of
looking for a knife, and without any warning, stabbing the victim who was sleeping.

There is treachery when the attack is upon an unconscious victim who could not have put up any defense whatsoever,[14]
or a person who was dead drunk and sleeping on a bench and had no chance to defend himself.[15] Clearly, the attack
was not only sudden but also deliberately adopted by the accused to ensure its execution without risk to himself.

The accused argues that trial court erred in imposing the death penalty despite the attendance of mitigating and
alternative circumstances in his favor.[16] He avers that he is entitled to the mitigating circumstance of plea of guilty. We
disagree. While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for

20

which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense
cannot be considered as an attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code because
to be voluntary the plea of guilty must be to the offense charged.[17]

Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and
the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense
charged. We note that the prosecution rejected the offer of the accused.

Nor can the accused avail of the mitigating circumstance of voluntary surrender as he himself admitted that he was
arrested at his uncle's residence.[18] The following elements must be present for voluntary surrender to be appreciated:
(a) the offender has not been actually arrested; (b) the offender surrendered himself to a person in authority, and, (c) the
surrender must be voluntary.[19]

Resorting to sophistry, the accused argues that he was not arrested but "fetched" as he voluntarily went with the
policemen when they came for him. This attempt at semantics is futile and absurd. That he did not try to escape or resist
arrest after he was taken into custody by the authorities did not amount to voluntary surrender. A surrender to be
voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities,
either because he acknowledges his guilt or because he wishes to save them the trouble and expense necessarily
included in his search and capture.[20] It is also settled that voluntary surrender cannot be appreciated where the
evidence adduced shows that it was the authorities who came looking for the accused.[21]

Moreover, the evidence submitted by the prosecution belies the claim of the accused that he intended to submit himself to
the authorities. The joint affidavit of the arresting officers, the veracity of which was admitted by the parties and evidenced
by a 20 October 1999 Order of the trial court, revealed that they chanced upon the accused trying to escape from the rear
of the cockpit building when they came looking for him.[22]

Similarly, there is no factual basis to credit the accused with the mitigating circumstance of outraged feeling analogous or
similar[23] to passion and obfuscation.[24] Other than his self-serving allegations, there was no evidence that the victim
threatened him with a grenade. Domingo Reyes and Esmeraldo Cortez testified that there was no prior altercation or
disagreement between Edgar and Leonides during the drinking spree, and they did not know of any reason for Edgar's
hostility and violence. On the contrary, Esmeraldo Cortez even recalled seeing the two (2) in a playful banter (lambingan)
during the course of their drinking[25] indicating that the attack on the accused was completely unexpected.

The accused would want us to reconsider the penalty imposed on him on account of his not being a recidivist. He
contends that an appreciation of this factor calls for a reduction of the penalty.

We are not persuaded. Recidivism is an aggravating circumstance the presence of which increases the penalty. The
converse however, that is, non-recidivism, is not a mitigating circumstance which will necessarily reduce the penalty.
Nonetheless, we hold that the trial court erred in not appreciating the alternative circumstance of intoxication in favor of
the accused. Under Art. 15 of The Revised Penal Code, intoxication of the offender shall be considered as a mitigating

21

circumstance when the offender commits a felony in a state of intoxication, if the same is not habitual or subsequent to the
plan to commit said felony. Otherwise, when habitual or intentional, it shall be considered as an aggravating circumstance.

The allegation that the accused was drunk when he committed the crime was corroborated by the prosecution witnesses.
The accused and his drinking companions had consumed four (4) bottles of gin at the house of Esmeraldo Cortez, each
one drinking at least a bottle.[26] It was also attested that while the four (4) shared another bottle of gin at the house of
Amado Dawaton, it was the accused who drank most of its contents.[27] In addition, Esmeraldo testified that when Edgar
and Leonides arrived at his house that noon, they were already intoxicated.[28] There being no indication that the
accused was a habitual drunkard or that his alcoholic intake was intended to fortify his resolve to commit the crime, the
circumstance of intoxication should be credited in his favor.

Consequently, we find that the trial court erroneously imposed the penalty of death. The accused was charged with
murder for which the law provides a penalty of reclusion perpetua to death. Under Art. 63, par. 3, of The Revised Penal
Code, in all cases in which the law prescribes a penalty composed of two (2) indivisible penalties, such as in this case,
when the commission of the act is attended by a mitigating circumstance and there is no aggravating circumstance, the
lesser penalty shall be applied. Since no aggravating circumstance attended the killing but there existed the mitigating
circumstance of intoxication, the accused should be sentenced only to the lesser penalty of reclusion perpetua.

The trial court correctly ordered the accused to pay civil indemnity in the amount of P50,000.00 to the heirs of the victim
without need of proof other than the fact that a crime was committed resulting in the death of the victim and that the
accused was responsible therefor.[29] The heirs are also entitled to moral damages pursuant to Art. 2206 of the New Civil
Code on account of the mental anguish which they suffered, and the amount of P50,000.00 is considered reasonable
according to existing jurisprudence.[30]

WHEREFORE, the assailed Decision of the court a quo finding the accused EDGAR DAWATON guilty of MURDER
qualified by treachery is AFFIRMED with the modification that the penalty is reduced from death to reclusion perpetua.
The accused is ordered to pay the heirs of Leonides Lavares P50,000.00 in civil indemnity and P50,000.00 in moral
damages.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Morales, and Callejo, Sr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 136733-35

December 13, 2001

22

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ELADIO VIERNES y ILDEFONSO, appellant.
PANGANIBAN, J.:
Under the Rules of Court, a judgment of conviction in a criminal prosecution may be modified only upon motion of the
accused. As a rule, the prosecution is prohibited from seeking, and the trial court from granting, a more severe penalty
than that imposed in the original decision. This is especially true in a case in which the new and amended penalty
imposed is death.
The Case
1

Before us is an appeal from the April 6, 1998 Decision and the May 21, 1998 Order of the Regional Trial Court (RTC) of
Lipa City (Branch 12) in Criminal Case Nos. 0532-97, 0533-97 and 0534-97. The assailed Decision convicted appellant of
two counts of rape and one count of attempted rape. It disposed as follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt
in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the
Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case No. 053397 of the crime of Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of
the Revised Penal Code, as amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim. Case
No. 0534-97 of the crime of Rape, as defined and penalized under Article 335, par. 1 of the Revised Penal Code,
as amended by Republic Act No. 2532 and Republic Act No. 4111, and sentences him, as follows:
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article
2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article
2229 of the same Code and the costs of this suit;
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4) YEAR, TWO (2)
MONTHS and ONE (1) DAY of Prision Correccional, as Minimum, to EIGHT (8) YEARS and ONE (1)
DAY of Prision Mayor, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00, and to
pay the costs of this suit; and
"3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION PERPETUA, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00 as moral damages pursuant to Article
2219 (3) of the Civil Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article
3
2229 of the same Code and the costs of this suit."
On the other hand; the assailed Order increased the penalties as follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO, guilty beyond reasonable doubt
in Crim. Case No. 0532-97 of the crime of Rape, as defined and penalized under Article 335, par. 3 of the
Revised Penal Code, as amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of Attempted
Rape, as defined and penalized under Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as
amended by Republic Act No. 7659, and in Crim. Case No. 0534-97 of the crime of Rape, as defined and
penalized under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 7659, and
sentences him, as follows:
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify CATHERINE LINATOC in
the amount of P50,000.00, to pay P10,000 as moral damages pursuant to Article 2219 (3) of the Civil
Code, as well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of the same
Code and the costs of this suit;
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10) YEARS and ONE (1)
DAY of Prision Mayor, as Minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY

23

of Reclusion Temporal, as Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to
pay the costs of this suit; and
"3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify Catherine Linatoc in the
amount of P50,000.00, to pay P10,000.00, as moral damages pursuant to Article 2219 (3) of the Civil
Code, the amount of P5,000.00, as exemplary damages, pursuant to Article 2229 of the same Code and
4
the costs of this suit."
Three criminal Complaints, all dated August 21, 1997, were filed by Catherine Linatoc (assisted by her mother Lina Dela
Cruz-Linatoc) before Second Assistant City Prosecutor Danilo S. Sandoval. The Complaint in Criminal Case No. 0532-97
charged appellant with rape committed as follows:
"That on or about the 29th day of September, 1996 at about 10:00 o'clock in the morning at Barangay Tibig, Lipa
City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the
common law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously, by means
of force and intimidation have carnal knowledge of the undersigned complainant who is a minor below 12 years
old, against her will and consent to her damage and prejudice in such amount as may be awarded to her under
5
the provision of the Civil Code."
The Complaint in Crim. Case No. 0534-97 likewise charged him with consummated rape:
"That on or about the 18th day of August 1997 at about 12:00 o'clock noon, at Barangay Tibig, Lipa City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then the common
law husband of the mother of the victim, did then and there wilfully, unlawfully and feloniously, by means of force
and intimidation have carnal knowledge of the undersigned complainant who is a minor of 12 years old against
her will and consent to her damage and prejudice in such amount as may be awarded to her under provisions of
6
the Civil Code."
Finally, in Criminal Case No. 0533-97, appellant was charged with attempted rape:
"That on or about the month of March 1997, around noon time, at Barangay Tibi, Lipa City, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, being then the common law husband of the
mother of the victim, by means of force and intimidation and with lewd design pursuant to his carnal desire, did
then and there willfully, unlawfully and feloniously commence the commission of the felony of rape directly by
overt acts against the undersigned complainant who is a minor below 12 years old, by then and there undressing
her and going on top of her with his exposed private organ but did not perform all the acts of execution which
7
should have produced the said felony because the undersigned offended party resisted."
Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court of Lipa City, Branch 12; and Criminal
8
Case No. 0533-97, to Branch 85 of the same court. Later, all the cases were consolidated in Branch 12.
9

On arraignment, appellant pleaded not guilty. After trial in due course, the lower court rendered the assailed Decision.
In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked that the imposed penalties be increased
pursuant to Republic Act (RA) No. 7659. The RTC granted the Motion via the assailed Order.
The Facts
Version of the Prosecution
In its Brief,

10

the Office of the Solicitor General presents the following narration of facts:

"Catherine Linatoc stood quietly by the door of the toilet of appellant's her mother's common-law husband
house. Her skirt's hemlines were slowly falling to her knees vainly covering the panty that were pulled down midway her lower legs. This was the third of a series of dismaying sex that she and appellant had been through. Like
the others before this one, there was by appellant much pulling, shoving and forcible grasping of her hands, thus
rendering her immobile for three minutes or so.

24

"The third rape happened in appellant's house in Tibig, Lipa City, around noontime of August 18, 1997. Appellant
then bidded [sic] the two brothers and a step-brother of Catherine Linatoc to clean the his tricycle, which was
parked on the side of the street across his house. They followed his order. Appellant also instructed Catherine
Linatoc to fetch water for the house toilet. She obliged, returning with two pails of it. She deposited them by the
door of the toilet. Turning about, Catherine Linatoc was surprised to find appellant behind her. In quick
succession, appellant pushed her to the wall, pulled her skirts up, drag her panty mid-way her lower leg, and
rushed his own pants down. Grasping her hands tightly with one hand, appellant began inserting his penis into
her vagina. She resisted to no avail. His penis established a comfortable slide into and out of her [organ], as the
pace quickened for about three minutes. The gyration was furious. After appellant spurted out, he backed off and
left saying nothing.
"Frightened and crying, Catherine Linatoc went to her great-grandmother's abode in San Guillermo, Lipa City.
She reported the incident to this elder, and recounted some more. Catherine Linatoc told her great-grandmother
of two other acts of sexual abuse by appellant. The first one, she narrated, happened on September 29, 1996,
about ten in the morning[;] and the second, on March 1997 around noon-time.
"The first rape happened on September 4, 1996 in appellant's house. Catherine Linatoc was on the ground floor
of the house when so suddenly appellant sprung from wherever he was, grabbed and carried her to the second
floor. The second floor was just three steps from the ground floor. He then undressed her, taking off her sando,
skirt and panty. He undressed himself too, and then floored both their bodies, [his] on top of her. He caressed her
breasts and started inserting his penis into her vagina. Appellant held her hands tightly and fought off her
struggle. There was push and pull for about three minutes, then appellant came through. Appellant dressed up,
and before walking away, apologized to her. It would be the first and last rape, he said.
"There was soon the second sexual abuse. In March 1997, about noontime, using the same strategy as he did in
the [first] rape, appellant unburdened himself on Catherine Linatoc. From nowhere, appellant appeared. He
dragged her to the second floor where he undressed her and himself. He mightily threw her to the floor, his
sweaty body covering her's. Appellant engaged in the now familiar gyration once again. This time, however his
penis landed on the thighs of the victim as insertion, because of her struggle and vagina's virginal qualities,
became frustratingly difficult. Between her thighs appellant thrusted his penis. He satisfied himself just the same.
"The great-grandmother was helpless to remedy the abuse done to Catherine Linatoc. They waited for the father
of Catherine Linatoc, Orlando Linatoc, who arrived four days later. The mother of Catherine Linatoc, Lina Viernes,
also arrived. Catherine Linatoc had her medico-legal examination with these results.:
'x x x lacerated hymen on the 3:00 and 9:00 o'clock positions with small amounts of whitish discharge.'
"The medico-legal examination was performed by Dr. Helen S. Dy. The present criminal complaints against
11
appellant were thereafter filed."
Version of the Defense
Appellant denies the charges against him. Claiming to have been elsewhere at the time of the commission of the alleged
crimes, he submits the following counterstatement of the facts:
"1) ELADIO, at the lower court, stated that he is the common law husband of Lina de la Cruz-Linatoc (mother of
the alleged victim . . . Catherine Linatoc). He is a security guard and at the same time, a tricycle driver. On
September 29, 1996 he was living with Lina, together with Catherine, his two sons and other relatives. On
September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine went to the house of her great
grandmother and stayed therein even beyond September 29, 1996. Therefore, it is impossible for him (ELADIO)
to have attacked Catherine sexually on September 29, 1996. It is not true that he attempted to rape Catherine in
March of 1997 because he was on duty at that time. Their company logbook will bear witness thereto. (Exhibit '2',
Original Records) On August 18, 1997 it is not true that he raped Catherine since he was plying his tricycle then.
(TSN, pp. 2-13, December 11, 1997; and pp. 2-22, January 8, 1998)
"2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of ELADIO that Catherine was no
longer in their house on September 29, 1996 and that ELADIO could not have abused Catherine sexually.
Catherine's charge for March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3, 1998).

25

xxx

xxx

xxx

"D. Sur-Rebuttal Evidence

"ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the case."

12

Ruling of the Trial Court

The court a quo held that the testimony of Catherine Linatoc both on direct and on cross-examination was clear,
positive and steadfast. Corroborated by the medicolegal examination conducted on her, it was replete with details that
jibed on material points. The prosecution successfully proved that she was the daughter of appellant's common-law wife
and that, at the time of the crime, she was 12 years old.
The declarations of complainant were accorded full faith and credence on the theory that she would not publicly
acknowledge the defilement of her virtue or subject herself to public humiliation, if her purpose was not to obtain justice for
the wrong committed. There is no evidence that she was a woman of loose morals or that she had any ill motive to falsely
accuse appellant.
On the other hand, appellant's denial and alibi were unsubstantiated and self-serving; hence, they deserve no weight in
law. They cannot stand against Catherine's positive testimony.
In the assailed Order, the trial court noted that the prosecution's Motion was unopposed. It ruled that the increase in the
penalty did not place appellant in double jeopardy.
Hence, this appeal.

13

The Issues
In his Brief,

14

appellant raises this sole alleged error:

"The lower court has committed an error in convicting the accused-appellant of the crimes charged and on meting
out on him the supreme penalty of death, more particularly in Criminal Cases Nos. 0532-97 and 0534-97."
An appeal from a criminal conviction, especially one involving the death penalty, throws the whole case open for review.
Thus, it becomes the duty of the reviewing court to correct any error in the appealed judgment, whether or not it is made
15
the subject of an assignment of error. In this light, the Court believes that a second issue needs to be taken up, namely:
"Whether the trial court erred in increasing the penalties via the assailed Order."
This Court's Ruling
The trial court was correct in convicting appellant in accordance with the challenged Decision, but was wrong in imposing
the new penalties through the assailed Order.
First Issue:
Appellant's Culpability
After a thorough review of the pleadings, the transcripts of stenographic notes and other records of the case, we are
convinced that the court a quo did not err in giving credence to the testimonies of the victim and the other prosecution
witnesses. The testimony of private complainant, detailing how she was abused by appellant on two separate occasions
and how he tried to rape her once more, was clear and convincing. We quote at length:
"Q
While you were in your house on that date, September 29, 1996, 10:00 o'clock in the morning, do you
remember of any unusual incident that transpired if any?
A

Yes, sir.

26

What was that unusual incident that transpired?

After my mother left, I was pulled sir.

By whom, who pulled you?

My step father, sir.

Where were you brought, towards what direction?

Towards the second floor of our house and to the place where we sleep, sir.

Q
By the way, that house where you were living in Brgy. Tibig, Lipa City on that date September 29, 1996,
what kind of house is that?
A

It is made of Sawali, sir.

How about the flooring, how many floors does it have?

Three (3) steps sir.

What do you mean by three (3) steps?

Our stairs is made of three (3) steps, sir.

Court:
From the ground floor?
A

Yes, sir.

What is located after going this stairs composed of three (3) steps?

That is the place where we sleep sir.

Q
After you [were] pulled upstairs to where you usually sleep by Eladio Viernes, what did Eladio Viernes do
to you after reaching that upper portion of your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A

He undressed me sir.

What were you wearing that Eladio Viernes took of[f] from your body?

I was wearing a skirt which was my uniform sir.

What else i[f] any were taken of[f] from your body by Eladio Viernes?

27

My blouse, sando and my skirt and my panty sir.

Q
After Eladio Viernes took your clothing, after removing your clothing what did Eladio Viernes do on your
body?
A

He placed himself on top of me.

When Eladio Viernes placed himself on top of you, what was he wearing if any?

None sir.

Q
By the way, when Eladio Viernes pulled you to where you usually sleep, what was his wearing at that
time?
A

He was wearing pants, sir.

Q
You said that after Eladio Viernes took of[f] all your clothing he went on top of you you said he was already
naked, what did he do with hi[s] pants before he went on top of you?
A

He mashed [m]y breast sir.

What else did he do [to] you aside from mashing your breast?

He inserted his penis into my vagina.

By the way, while he was mashing your breast, what were you doing if you did anything?

I was fighting him back sir.

What did Eladio Viernes do when you fought him back while he was mashing your breast?

He was slapping me sir.

When he inserted his penis into your vagina, what did you feel?

Painful, sir.

Was Eladio Viernes able to actually insert his penis[?]

Atty. Dimaandal
Leading your honor.
Q
After Eladio Viernes inserted his private organ into your private organ, what else did he do if anything
more?
A

He did pumping motion, sir.

For how long did he do this pumping motion, while his penis was inside your vagina?

About three (3) minutes sir.

Q
After three (3) minutes when Eladio Viernes did this pumping motion while his penis was inside your
vagina, what else did he do if he did anything more?

28

He removed his private organ sir."

16

We also quote the testimony of the victim regarding appellant's attempt to rape her:
"Q

When was the second time, after September 26, 1996?

In May 1997 but I do not remember the exact date sir.

Are you sure about the date?

Atty. Dimaandal
That is the answer of the witness.
Prosecutor
That's why I am asking, are you sure about the date?
A

May 19, 1997 sir.

Q
By the way, in [the] second incident [where] Eladio Viernes according to you raped you again, where did
this happen?
A

At Barangay Tibig, Lipa City.

In what particular place in Bgy. Tibig were you raped for the second time by Eladio Viernes?

In the upper portion of our house at the place where we are sleeping sir.

The same place where the second rape was committed?

Yes, sir.

Around what time did this happen, this second rape happened?

Atty. Dimaandal
We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A

Noontime sir.

How did this happen?

He again pulled me sir.

By the way on that second occasion, where was your mother?

She was working sir.

You said that you were again pulled, where were you brought by Eladio Viernes at the same time around?

29

The upper portion of our house and at the place where we were sleeping sir.

After you were pulled by Eladio Viernes, what did Eladio Viernes do to you?

He undressed me sir.

Q
What kind of wearing apparel that you were wearing that were taken off by Eladio Viernes on that same
occasion?
A

I was wearing a skirt sir.

After you were undressed by Eladio Viernes what did Eladio Viernes do to you if he did anything?

He again placed himself on top of me sir.

What was he wearing he placed himself on top of you if he was wearing anything?

He was wearing pants sir.

When he placed himself on top of you, where was his pants?

He removed pants sir.

Q
When Eladio Viernes went on top of you, what did you [sic] do if he anything more on the second time
around?
A

He again mashed my breast sir.

What did you do when Eladio Viernes again mashed your breast?

I was fighting him back sir.

What else did he do aside from mashing your breast, what did Eladio Viernes do to you?

He was inserting his penis into my vagina sir.

When Eladio Viernes was inserting his penis into your vagina, what did you do?

I was struggling sir.

When you struggled, what happened to that effort of Eladio Viernes to insert his penis into your vagina?

It was not inserted sir.

What did Eladio Viernes do when he failed to insert his penis into your vagina?

He just placed it between my thighs sir.

After placing his penis between your thighs, what else did Eladio Viernes do if he did anything?

Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He just place on my thigh, there
was no vagina [sic].

30

You said that Eladio Viernes placed his penis in your thighs, in what particular part of your thighs?

Atty. Dimaandal
Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q

What did Viernes do after he put his penis between the inner portion of your two thighs?

[H]e placed his penis between my thighs and he again did the pumping motion sir."

17

Pertinent portions of the testimony of complainant regarding her second defilement in the hands of appellant read as
follows:
"Q

Miss Witness, on August 18, 1997 around 12:00 noon where were you?

I was at home sir.

What were you doing?

I just arrived from school sir.

You said that you were in your house, where was this house located on that date, August 18, 1997?

At Barangay Tibig sir.

Q
You said that you had just arrived from school, when you arrived in your house in Brgy. Tibig, Lipa City on
August 18, 1997 around 12 noon, whom did you meet in your house if you met anybody there?
A

My step father sir.

Meaning Eladio Viernes?

Yes sir.

Q
Seeing Eladio Viernes in your house on that date August 18, 1997 around 12 noon, what did he do if he
did anything upon seeing him or meeting you?
A

He instructed our companions in the house to clean the motor tricycle sir.

Q
After instructing your companions in your house to clean the motor tricycle, what else did Eladio Viernes
do, if he did anything more?
A

He asked me to fetch two (2) containers of water sir.

Q
By the way, these your companions of your house, [sic] who where given the instruction by Eladio Viernes
to clean the motor tricycle, who are these companions [sic] of your house?

31

My two brothers and one step brother, sir.

Q
How old were these two brothers of yours and your one step brother who were given the instruction by
Eladio Viernes to clean the motor tricycle?
A

My step brother was 12 years old; my two brothers were six and 5 years old sir.

How far was this tricycle from your house?

Near the street sir.

Q
Around how many meters if you can calculate was this tricycle from your house or can you point distance
from the place where you are sitting now to any place inside the court room?
Interpreter
Witness pointing to the railings inside the Court room as their house and the witness pointed to the
western wall of the court room as the place where the tricycle was to be around 7 meters sir.
Q
What did your two (2) brothers and one (1) step brother do if they did anything more upon receiving the
instruction from your step father Eladio Viernes to clean the motor tricycle?
A

They followed the instruction of my step father to clean the tricycle sir.

Q
How about you when you were instructed by your step father to fetch two (2) containers of water, what did
you do?
A

I brought the water near the comfort room sir.

Q
After you brought the two (2) containers of water to the place were you said a while ago, what did Eladio
Viernes do to you if he did anything?
A

He followed me sir.

After Eladio Viernes followed you, what did he do [to] you if he did anything?

I was frightened sir.

Why?

Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.'
Court
Continue.
Q

Why did you get frightened?

Because I felt that he will repeat the same thing sir.

What do you mean repeat the same thing?

He will again repeat raping me sir.

32

When you got frightened, what did you do?

I tried to struggle sir.

Why did you struggle, what was Eladio Viernes doing [to] you?

A
He pulled up my skirt and when I was trying to go out from the comfort room he was stopping me from
going out sir.
Q
What happened to your struggle, to free from the hold of Eladio Viernes when you were inside the comfort
room?
A

I could not go out [o]f the comfort room because I was held by my step father sir.

After Eladio Viernes pulled up your skirt, what did he do with you if he did anything more?

He pulled down my panty sir.

Up to what portion was that panty of yours pulled down?

Interpreter
Witness pointing to her ankle
Q

After Eladio Viernes pulled down your panty up to your ankle, what did he do to you?

He was inserting his penis into my vagina, sir.

What was your position in relation to Eladio Viernes when he was inserting his penis into your vagina?

I was standing sir.

Q
How about Eladio Viernes, where was he in relation to you while he was inserting his penis into your
vagina?
A

He was at my back sir.

What happened to this effort of Eladio Viernes in trying to insert his private organ into your private organ?

It was inserted sir.

Q
You said that you were standing, what was the form or what was the position of your body aside from the
fact that you were standing when Eladio Viernes was able to insert his penis into your vagina while he was at your
back?
A

I was standing and I was struggling sir.

Q
When Eladio Viernes was actually able to insert his penis into your vagina, what was the position of your
body aside from the fact that you were standing?
A

I was standing with my knees bent sir.

Q
After Eladio Viernes was able to insert his, penis into your vagina while you are in a standing position, how
long was his penis inside your vagina?

33

About three (3) minutes sir."

18

Catherine impressed the trial court as "a decent woman [who has] not been shown to be of loose morals or one who goes
19
out with different men any time of the day or night." A rape victim who testifies in a categorical, straightforward,
20
spontaneous and frank manner and remains consistent is a credible witness. It is well-entrenched that the trial
court is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to
21
observe them firsthand and to note their demeanor, conduct and attitude on the stand. In the absence of any showing
that its assessment is flawed, an appellate tribunal is bound by it.
Despite the tender age of complainant, her accounts on direct and cross-examination were replete with details that jibed
22
on material points. Considering her young age, it would have been highly improbable for her to fabricate a charge so
23
humiliating to her and her family, had she not been truly subjected to the painful experience of sexual abuse.
The moral ascendancy of appellant as the common-law husband of complainant's mother takes the place of force and
24
intimidation as an element of rape, although the presence of such element is apparent from Catherine's testimony.
Alibi and Corroboration
Appellant denies having raped Catherine on September 29, 1996, claiming she was at her grandmother's house in San
Guillermo, while he was outside his house digging a toilet pit. Allegedly, in March 1997, he was on duty as a security
guard at the Smart Tower; and on August 18, 1997, he was busy the whole day plying his tricycle route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated by clear and convincing evidence, are
negative and self-serving evidence that deserve no weight in law. They cannot be given greater evidentiary value over a
25
credible witness' testimony on affirmative matters. Except for Lina Linatoc's corroboration, the only evidence supporting
the alibi and denial of appellant is his own say-so. And Lina happens to be his common-law wife; thus, her testimony is
26
necessarily suspect and cannot prevail over the testimonies of more credible witnesses. Negative testimony cannot
27
prevail over the offended party's positive identification of the accused as her rapist.
Finally, for alibi to prosper, it must be shown that the accused was in another place at the time the crime was committed,
and that it would have been physically impossible for him to be at the scene of the crime at the time it was
28
committed. Such physical impossibility was not proven in the present case. The Smart Tower where appellant worked as
a security guard was located also in Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house. The
tricycle station, on the other hand, was only 1000 meters away. Note that he had a motorized tricycle at his disposal. His
alibi, therefore, is unworthy of credence.
Attempt to Settle the Case
Appellant strongly denies the prosecution's assertion that he attempted to settle the case with complainant's family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the letter dated November 25, 1997
addressed to Orlando and Catherine Linatoc, signed by appellant and delivered by Lina Linatoc was admissible
evidence against appellant. Perusal of the letter reveals that he attempted to bribe Orlando with P150,000 or a house and
29
lot and a promise of an additional P100,000 in exchange for dropping the charges against him. Under Section 27, Rule
130 of the Rules of Court, an offer of compromise by the accused may be received in evidence as an implied admission of
guilt.
Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an acknowledgment of guilt, or an intention to
30
save the authorities the trouble and the expense that search and capture would require. Going to the police station "to
31
clear his name" does not show any intent of appellant to surrender unconditionally to the authorities.
Medicolegal Officer's Testimony

34

Appellant avers that the medicolegal officer who examined complainant admitted being unsure of her findings.
We disagree with the assessment by appellant of the testimony of the medicolegal officer. However, even if we discount
the testimony of the latter, complainant's testimony by itself can sustain the former's conviction. Medical examination is
not an indispensable requirement, and its absence does not affect the verdict of conviction, if sufficient evidence is
32
presented to prove the crime charged. When a rape complainant, especially one of tender age like Catherine, says that
she has been raped, she in effect says all that is necessary to show that she has indeed been raped.
Civil Indemnity and Moral Damages
The Solicitor General takes issue with the damages awarded by the RTC. In the assailed Order, it ordered appellant to
pay P50,000 in civil indemnity, P10,000 in moral damages and P5,000 in exemplary damages for every count of
consummated rape; and P25,000 in civil indemnity for the attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a case of consummated rape to P75,000 if the
crime was committed with, or effectively qualified by, any of the circumstances under which the death penalty is
33
authorized by the applicable amendatory laws. Moral damages are pegged at P50,000 without further need of pleading
or proof.
Exemplary damages, on the other hand, are granted when an aggravating circumstance, which is not offset by a
mitigating circumstance, attended the commission of the crime. In several cases, the relationship between the appellant
34
and the rape victim justifies the award of exemplary damages, as in this case.
Second Issue:
Modification of Penalties
One day after the promulgation of the April 6, 1998 Decision, the prosecution filed a Motion for Reconsideration seeking
the imposition of the death penalty on appellant for the two cases of consummated rape and reclusion temporal for the
attempted rape, in accordance with Section 11 of RA 7659. The prosecution argued that the Motion would not place
appellant in double jeopardy, because "what is sought is just the imposition of the proper penalty as provided by
35
law." The trial court concurred with the prosecution and granted the Motion in the assailed Order, saying that the Motion
36
was unopposed and that there was no violation of appellant's right against double jeopardy.
We disagree. Conflicting decisions rendered over the years both allowing the prosecution to seek the reconsideration
of a conviction and prohibiting it therefrom necessitate a review of the rule on the modification of judgments of
37
conviction. Early on, in People v. Ang Cho Kio, the Court, citing Article 2 of Rule 118 of the pre-1964 Rules of Court,
held that the prosecution cannot move to increase the penalty imposed in a promulgated judgment. Reopening the case
for the purpose of increasing the penalty as sought by the government would place the accused in double jeopardy. This
38
39
ruling was followed in People v. Pomeroy and People v. Ruiz.
The 1964 amendment of the Rules, however, allowed the fiscal to move for the modification or the setting aside of the
40
judgment before it became final or an appeal was perfected. Under this amendment, a judgment acquired finality and
41
the trial court lost jurisdiction only in the following cases: (1) after the 15-day period to appeal lapsed, (2) when the
42
defendant voluntarily submitted to the execution of judgment, (3) when the defendant perfected the appeal, (4) when the
43
accused withdrew the appeal, (5) when the accused expressly waived in writing the right to appeal, and (6) when the
44
accused filed a petition for probation. Under this amendment, the trial court had plenary power to alter or revise its
judgment in accordance with the requirements of law and justice.
In 1985, Section 7 of Rule 120 was amended to include the phrase "upon motion of the accused" effectively
resurrecting the Ang Cho Kio ruling prohibiting the prosecution from seeking a modification of a judgment of
45
conviction. As amended, the provision was worded as follows:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or
set aside by the court rendering it before the judgment has become final or appeal has been perfected. A
judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or the accused has expressly waived in writing his right
to appeal, or the accused has applied for probation."

35

Under this Rule, a judgment of conviction, before it became final, could be modified or set aside upon motion of the
46
accused. It obviously aims to protect the accused from being put anew to defend himself from more serious offenses or
penalties which the prosecution or the court may have overlooked in the original trial. It does not however bar him from
seeking or receiving more favorable modifications.
Significantly, the present Rules, as amended last year, retained the phrase "upon motion of the accused," as follows:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or
set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied
for probation."
Therefore, the assailed Order is erroneous and reversible. The trial court cannot increase the penalties without the
consent of the accused.
We close this Decision with an exhortation to the defense counsel to be more circumspect in defending appellant and
others similarly situated. Counsel should have immediately objected to the Motion for Reconsideration in the trial court.
Because of this failure to take exception, the RTC judge meekly granted the relief prayed for and condemned the
accused, inter alia, to two death sentences.
Before this Court, counsel was again caught flat-footed by not raising the erroneous basis of the assailed Order. We
cannot disregard such serious lapse. We urge counsel, as well as all the members of the bench and the bar, to be more
vigilant in protecting the rights of the accused especially those in jeopardy of the death penalty and to keep abreast
47
of legal developments. Indeed, the learning process in law never ceases. Utmost dedication to duty and excellence is
expected of every lawyer.
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order is ANNULLED and SET ASIDE, while
the assailed Decision is AFFIRMED and REINSTATED with the MODIFICATION that the awards of moral damages are
increased to P50,000 and those for exemplary damages to P25,000 for each consummated rape, pursuant to current
48
jurisprudence.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 147231

February 18, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
RONNIE ABOLIDOR, CLAUDIO BARCIMO, JR. and FRANCISCO COMODA, accused.
CLAUDIO BARCIMO, JR., appellant.
DECISION
YNARES-SANTIAGO, J.:
1

This is an appeal from the decision dated January 31, 2000 of the Regional Trial Court of Iloilo City, Branch 31, in
Criminal Case No. 40948, convicting Claudio Barcimo, Jr. @ "Noc-noc", Ronnie Abolidor and Francisco Comoda of the
crime of murder, sentencing them to suffer the penalty of reclusion perpetua and ordering them to pay P100,000.00 as
civil indemnity, P16,000.00 as actual damages and P30,000.00 as moral and exemplary damages.

36

Claudio Barcimo, Jr., Ronnie Abolidor and Francisco Comoda were indicted for Murder in an Information alleging:
That on or about the 14th day of June 1993, in the Municpality of New Lucena, Iloilo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another
together with another unidentified person, armed with firearms of unknown caliber, with deliberate intent and decided
purpose to kill, with treachery, superior strength and evident premeditation, did then and there, willfully, unlawfully and
feloniously attack and shoot Thelma Subosa with said firearms hitting the latter on the head, chest and other parts of her
body which caused the death of said Thelma Subosa immediately thereafter.
CONTRARY TO LAW.

Upon arraignment, the three accused pleaded not guilty. Trial on the merits ensued.
The victim, Thelma Subosa, was the mother of 14 children with her deceased husband, Primo Subosa. Subsequently, she
cohabited with her common-law husband Warlito Huesca and lived together with some of her children in Brgy. Janipa-an,
Oeste, New Lucena, Ilo-ilo. Thereafter, Warlito Huesca also died.
In the early morning of June 14, 1993, a day after Warlito was buried, the victim, her children namely, Ellyn, Roselyn,
Evelyn, Manilyn, Leopoldo and Lilibeth, and Milagros Huesca, the younger sister of Warlito Huesca, were awakened by
the forcible opening of the door of their house. Four men entered the house and declared a "hold up". The victim pleaded
not to be harmed. Instead, accused Ronnie Abolidor tied her mouth with a handkerchief to silence her. Then appellant
4
Claudio Barcimo, Jr. shot the victim several times causing her instantaneous death.
Prosecution witnesses Ellyn and Roselyn identified Claudio Barcimo, Jr. and Ronnie Abolidor since they slept on the
5
same mat with the victim and a kerosene lamp was near the victims head. Both testified that they knew Ronnie Abolidor
because he was their neighbor for several years, and Claudio Barcimo, Jr. because he was a friend of their deceased
6
stepfather. Francisco Comoda was later identified by the witnesses at the police station.
Roselyn also testified that on June 12, 1993, at the burial of their stepfather, the victim told her that it was Claudio
7
Barcimo, Jr. @ "Noc-Noc" who killed Warlito Huesca.
For his part, appellant denied any participation in the killing of Thelma Subosa and claimed that he could not have done it
because he was a good friend of Warlito Huesca; that on June 13, 1993, at around 4:00 p.m., he was with Brgy. Capt.
Buol in a celebration at the house of Brgy. Capt. Gerardo Paniza at Brgy. Dawis. He had dinner and watched game of
mahjong; that at around 10:00 p.m., he went to sleep on the sofa near the mahjong table; that the mahjong game lasted
until 4:00 a.m. the following day; that he and Capt. Buol went back to New Lucena at about 6:00 a.m. of June 14, 1993;
8
and on the next day, he left for Manila for treatment of tuberculosis.
After trial, the trial court convicted the three accused on January 31, 2000 in a decision, the dispositive portion of which
reads:
WHEREFORE, the prosecution having sufficiently established the guilt of all the three accused, namely, Claudio Barcimo,
Jr., alias Nocnoc, Ronilo Abolidor alias Ronnie and Francisco Comoda, beyond reasonable doubt (Rule 133, Sec. 2,
Revised Rules of Court) of the offense of Murder under Art. 248, R.P.C. as alleged in the Information, this Court hereby
renders judgment sentencing all the said accused to suffer the penalty of imprisonment consisting of Reclusion Perpetua,
with all the attendant accessory penalties, to pay P100,000.00 as indemnity for death to the heirs of the late Thelma
Sobusa, to pay the sum of P16,000.00 as actual damages, and P30,000.00 by way of moral and exemplary damages and
to pay the costs.
SO ORDERED.

Only Claudio Barcimo, Jr. appealed the decision raising the following assignment of errors:
A. THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF PROSECUTION WITNESSES ELLEN
SOBUSA AND ROSELYN SOBUSA AND IN NOT APPRECIATING THE TESTIMONY OF THE AUNT OF SAID
WINTNESSES AS CORROBORATED BY THE BARANGAY CAPTAIN OF THE PLACE WHERE THE INCIDENT
HAPPENED THAT THE SAID PROSECUTION WITNESSES HAVE NOT IDENTIFIED THE KILLERS.

37

B. THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY IS ATTENDANT IN THE COMMISSION OF
THE CRIME.
C. THE TRIAL COURT ERRED IN HOLDING THAT NIGHTTIME IS ATTENDANT IN THE COMMISSION OF
THE CRIME.
D. THE TRIAL COURT ERRED IN NOT APPRECIATING THE VOLUNTARY SURRENDER OF THE
10
ACCUSED.
Appellant Claudio Barcimo, Jr. contends that his identification by Ellyn and Roselyn as one of the assailants is doubtful
because when asked whether they know the assailants, they replied in the negative.
The contention is without merit.
By challenging his identification by the witnesses of the prosecution, as one of the assailants of the victim, the appellant
attacks the credibility of said witnesses and the probative weight of their testimonies. However, when the issue of
credibility of witnesses is in question, the findings of facts of the trial court, its calibration of the testimonies of witnesses
and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by
the appellate court high respect if not conclusive effect, precisely because of the unique advantage of the trial court in
observing and monitoring at close range the demeanor, deportment and conduct of the witnesses as they testify, unless
the trial court has overlooked, misconstrued or misinterpreted cogent facts of substance which if considered might affect
11
the result of the case.
In the case at bar, there is no showing that the trial court overlooked, misunderstood, misapplied or misconstrued any fact
of substance that might materially affect the outcome of the case. The trial court found the collective testimonies of the
prosecution witnesses Ellyn and Roselyn to be:
generally impressionable but their natural naivet and inexperience make them reliable witnesses. Their statements are
generally free from any bias or prejudice as to be slanted or malicious. It is observed that the testimonies of Ellyn and
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Roselyn Sobusa are direct, straightforward and delivered without any hesitancy whatsoever.
The two prosecution witnesses, Ellyn and Roselyn Sobusa, positively identified appellant as the one who shot the victim.
Although the incident occurred during nighttime, the house of the victim was sufficiently illuminated by the kerosene lamp
placed near the head of the victim, which provided enough light for purposes of identifying the killers.
On direct testimony, Ellyn Sobusa narrated the incident as follows:
Q. Can you recall in the morning of June 14, 1993 if there was any unusual incident that happened?
A. Yes, sir.
Q. What is that incident about?
A. At around that time I was awakened by the sound of the opening of the door. I saw four (4) persons entered
our house and one them said, "This is a hold up." My mother then pleaded, "Do not kill me. Have mercy."
Q. What happened after your mother pleaded have mercy?
A. There was a shot and I ducked. Then another shot was fired which I do not know anymore because I lied with
my face down.
Q. Do you know the person who said this is a hold up?
A. Yes, sir.
Q. Who is he?

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A. Nocnoc.
Q. How far is this Nocnoc when you said he shot your mother?
A. Very near.
Q. What was the position of your mother by the time she was shot by Nocnoc?
A. She was lying down.
xxx

xxx

xxx

Q. Miss witness, this incident happened at around 2:00 oclock in the morning, why are you sure that Ronnie
Abolidor was one of the four persons who entered your house?
A. Because we have a kerosene lamp placed very near the head of my mother.
Q. How far is that kerosene lamp from your mother?
A. Witness demonstrates about 5 to 6 inches more or less.
Q. At that time that she was shot by Nocnoc, how far is Nocnoc from the kerosene lamp?
A. Nocnoc was situated on the feet of my mother.
Q. What was the position of Nocnoc when he shot your mother?
A. He was standing.

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Considering the illumination from the kerosene lamp, and Ellyns proximity to her mother and to the appellant, she could
have clearly seen and recognized the appellant when he shot the victim.
14

In People v. Prieto, we ruled that the illumination provided by kerosene lamp or wicklamps, and flashlights, moonlight or
starlight may, in proper situations, be considered as sufficient illumination, making the attack on the credibility of
witnesses solely on that ground unmeritorious.
Moreover, Roselyn testified that she was familiar with the voice of the appellant as he was a friend of his stepfather and
15
she visited appellants house several times. The voice of a person is an acceptable means of identification where it is
established that the witness and the accused knew each other personally and closely for a number of years. Once a
person has gained familiarity with another, identification becomes quite an easy task even from a considerable
16
distance. We also note that appellant did not deny that Warlito Huesca was his good friend and that he visited their
17
house many times.
The credibility of the prosecution witnesses Ellyn and Roselyn is not adversely affected by their failure to immediately
report the identities of the perpetrators to the responding authorities immediately after the incident. Indubitably, fear stifled
the witnesses from voicing their knowledge of the identities of the perpetrators. There is no rule that a witness should
18
immediately name the suspect in a crime. Nevertheless, the delay was not that long as when the police authorities
investigated the witnesses in the afternoon of June 14, 1993 at Brgy. Agutayan, Sta. Barbara, Iloilo, they named appellant
19
and accused Ronnie Abolidor as two of the perpetrators.
To escape criminal liability, appellant invokes the defense of alibi and denial. He asserts that he could not have done it
considering that Warlito Huesca, the common-law husband of the victim, was his good friend and at the time of the
incident he was at Brgy. Dawis together with Brgy. Capt. Buol in the house of Brgy. Capt. Gerardo Pineza watching the
game of majhong.
We are not convinced.

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It is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive
on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear
20
and convincing evidence, are negative and self-serving evidence undeserving weight in law. Hence, the defense of
denial and alibi cannot prosper in the light of the positive identification by eyewitnesses Ellyn Sobusa and Roselyn Sobusa
that appellant was the one who shot their mother.
We agree with the trial courts appreciation of the presence of qualifying circumstance of treachery. There is treachery
when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the
offended party might make. It is settled that there is treachery if the victim, when killed, was sleeping or had just
21
awakened, because in such cases the victim was in no position to put up any form of defense.
In the case at bar, the victim had just awakened from sleep because of the forcible opening of their door. When she was
shot by appellant, she was lying down on the mat with a handkerchief tied around her mouth. Obviously, in this position
she can not defend herself from the aggression of the perpetrators.
The trial court did not err in disregarding the mitigating circumstance of voluntary surrender. To benefit an accused, the
following requisites must be proven, namely: (1) the offender has not actually been arrested; (2) the offender surrendered
himself to a person in authority; and (3) the surrender was voluntary. A surrender to be voluntary must be spontaneous,
showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his
guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. Voluntary
22
23
surrender presupposes repentance. In People v. Viernes, we held that going to the police station to clear ones name
does not show any intent to surrender unconditionally to the authorities.
In the case at bar, appellant surrendered to the authorities after more than one year had lapsed since the incident and in
order to disclaim responsibility for the killing of the victim. This neither shows repentance or acknowledgment of the crime
nor intention to save the government the trouble and expense necessarily incurred in his search and capture. Besides, at
24
the time of his surrender, there was a pending warrant of arrest against him. Hence, he should not be credited with the
mitigating circumstance of voluntary surrender.
Appellant is guilty of Murder, qualified by treachery, for the killing of Thelma Sobusa. Article 248 of the Revised Penal
Code, as amended, imposes the penalty of reclusion perpetua to death for Murder. The trial court was correct in imposing
the penalty of reclusion perpetua, there being no aggravating or mitigating circumstance, pursuant to Article 63, paragraph
2 of the Revised Penal Code.
The trial court awarded the amount of P100,000.00 as civil indemnity to the heirs of the victim. Said amount must be
25
reduced to P50,000.00, in line with prevailing jurisprudence.
The award of actual damages must also be modified. While appellant admitted the amount of P19,000.00 as actual
26
27
damages, the trial court only awarded the amount of P16,000.00. Ordinarily, receipts should support claims of actual
28
damages, but where the amount claimed was admitted, it should be granted. Consequently, the heirs of the victim is
entitled to be awarded the amount of P19,0000.00 as actual damages.
The trial court likewise erred when it awarded the amount of P30,000.00 as moral and exemplary damages without
indicating what amount constitutes moral damages and exemplary damages. In murder and homicide cases, the award of
29
moral damages should be substantiated by evidence. In the case at bar, the prosecution failed to present proof of moral
damages. Therefore, the same should be deleted.
On the other hand, exemplary damages must be awarded in view of the attendance of treachery which qualified the killing
to Murder. Under Article 2230 of the Civil Code, exemplary damages as part of the civil liability may be imposed when the
crime was committed with one or more aggravating circumstances. The term aggravating circumstances as used therein
is to be understood in its broad or generic sense since the law did not specify otherwise. The ordinary qualifying nature of
an aggravating circumstance is a distinction that should only be of consequence to the criminal, rather than to the civil
30
liability of the offender. Thus, the heirs of the victim are entitled to exemplary damages in the amount of P25,000.00.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Iloilo City, Branch 31, in Criminal Case
No. 40948, insofar as it finds Claudio Barcimo, Jr. @ "Noc-noc" guilty beyond reasonable doubt of the crime of murder
and sentences him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that appellant is

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ORDERED to pay the heirs of Thelma Sobusa the amounts of P50,000.00 as civil indemnity, P19,000.00 as actual
damages and P25,000.00 as exemplary damages. The award of moral damages is DELETED.
Costs de oficio.
SO ORDERED.

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